NEGLIGENCE-BASIC
PRINCIPLES
over 50% of the final examination.
one of the most important and the most frequently used areas
applies to a large number of activities and protects a wide range
of interests.
THE MEANING OF NEGLIGENCE
CARELESSNESS
Doing something a reasonable person wouldn‟t do, or
failing to do something that a reasonable person would do.
However while carelessness is a necessary condition for the establishment of liability in
the tort of negligence, it is not a sufficient condition.
Negligence as a tort emerged in 19th
century
Before this there was merely a list of situations where victims of careless conduct
might recover damages.
Covers
It is important to focus on
No single set of 1. physical safety the type of interest which
rules applicable to the C is trying to use the tort
2. safety of
all types of to protect and then
property
negligence cases as determine whether or not
it covers a wide 3. financial well- the scope of negligence has
range of interests being been extended to protect
4. psychological that particular interest.
well-being
DEFINITION
Lochgelly Iron and Coal v McMullan [1934]:
Lord Wright: “In strict legal analysis, negligence means more than heedless or
careless conduct, whether in omission or commission: it properly connotes the
complex concept of duty, breach and damage thereby suffered by the person to
whom the duty was owing.”
Negligence as a tort is the „…breach of a legal duty to take care which results in
damage to the Claimant‟.
Therefore, establishing negligence involves much more than simply showing that the D
behaved „carelessly‟ – careless behaviour is only one ingredient of the tort
The definitions show that the negligence as a tort consists of a tripartite structure.
In order to bring a successful action in negligence, the claimant must establish
three elements
(none of these requirements are sufficient in themselves - must be proved
together)
As a result, the C
has suffered
damage which is
The D has acted in
The D owes the C a not too remote a
breach of that
duty of care consequence of
duty
the D’s breach –
Causation and
remoteness
1. Duty of Care
the first hurdle a C must overcome
Relationship created by law b/w 2 or more persons which imposes an
obligation upon one towards another to act w/ care and as a reasonable
person
The C may be the only person to The C may be a member of a
whom the duty is owed (e.g A very large and possibly ill-
gives negligent advice to B defined class of persons to
which causes him financial loss) whom the duty is owed (A is
a driver who owes a duty to
all other users of highway)
Function
Determines whether the type of loss suffered by the Claimant in the
particular way it was caused is ever actionable.
In many situations, it will be obvious from established case law that the D owes
the C a duty of care.
Problems arise when the courts have to decide whether a duty of care should be
owed in a novel situation
2. Breach of Duty
The law imposes a certain standard of care with which one has to
conform. If the defendant’s behaviour falls below the standard of care
which is expected of him, it means he has breached the duty of care.
Two Questions
what standard of care the whether in fact he fell below
defendant owed to the victim that standard.
3. Causation and
Remoteness
The Defendant’s breach of duty must have caused the loss suffered by the
Claimant and the Claimant needs to prove that it’s because of the breach of duty
by D that he suffered a material, recognizable and valid damage.
TWO ISSUES
the claimant must show whether what whether or not the loss suffered by the
the D did was the factual cause of the C’s C is too remote – the remoteness issue
loss– the causation issue
A LEGAL QUESTION
A FACTUAL QUESTION
Damage will be recoverable only if it flows from the breach of duty both
in fact and in law
All these three elements overlap to a great extent
and in some cases, their separation may appear
artificial
POLICY QUESTIONS
The law of negligence is constantly changing and evolving. Sometimes the
courts expand its scope while at other times, courts tend to be restrictive
towards its scope----leads to inconsistency and uncertainty
The reason for this behaviour of the courts is attributed to the conflicting
policy considerations underlying the tort of negligence.
Policy considerations are based on wider social and economic implications of finding
a defendant liable
Examples
- concerns regarding a floodgate of litigation and indeterminate liability
- certain groups of defendants are protected from negligence liability.