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Negligence

Meaning: The term Negligence is derived from the Latin word “Negligentia” which means a failure to act
appropriately. In other words, it is a failure to exercise appropriate or ethical ruled care expected to be exercised
amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as
a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should
exercise reasonable care in their actions by taking account of the potential harm that they might foresee ably cause
to other people or property.
Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate
for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law
on negligence may be assessed in general terms according to a five-part model which includes the assessment of
duty, breach, actual cause, proximate cause and damages.

Elements of negligence claims: Some things must be established by anyone who wants to sue in negligence. These
are what are called the "elements" of negligence. Most jurisdictions say that there are four elements to a negligence
action, namely
 Duty - the defendant has a duty to others, including the plaintiff, to exercise reasonable care.
 Breach - the defendant breaches that duty through an act or culpable omission.
 Damages - as a result of that act or omission, the plaintiff suffers an injury, and
 Causation - the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or
omission.

Some jurisdictions narrow the definition down to three elements namely duty, breach and proximately caused harm.
Some jurisdictions recognize five elements such as duty, breach, actual cause, proximate cause, and damages.
However, at their heart the various definitions of what constitutes negligent conduct are very similar.

Duty of care: The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfill a
responsibility, recognized by law, of which the plaintiff is the intended beneficiary. The first step in determining the
existence of a legally recognized responsibility is the concept of an obligation or duty. In the tort of negligence the
term used is duty of care.
The case of Donoghue vs Stevenson – 1932 established the modern law of negligence, laying the foundations
of the duty of care and the fault principle which, (through the Privy Council), have been adopted throughout the
Commonwealth. May Donoghue and her friend were in a café in Paisley. The friend bought Mrs Donoghue a ginger
beer float. She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see
the decomposed remains of a snail exit the bottle.
Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the
manufacturer, Stevenson. (As Mrs Donoghue had not herself bought the ginger beer, the doctrine of privity
precluded a contractual action against Stevenson).
The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict (the Scots law
nearest equivalent of tort). The case proceeded to the House of Lords, where Lord Atkin interpreted the biblical
ordinance to 'love thy neighbor' as a legal requirement to 'not harm thy neighbor.' He then went on to define
neighbor as "persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions that are called in
question."
In England the more recent case of Caparo Industries Plc vs Dickman – 1990 introduced a 'threefold test' for
a duty of care. As such, harm must be reasonably foreseeable, there must be a relationship of proximity between the
plaintiff and defendant and it must be 'fair, just and reasonable' to impose liability. However, this act as guidelines
for the courts in establishing a duty of care, much of the principle is still at the discretion of judges.
In Australia, Donoghue vs Stevenson was used as a persuasive precedent in the case of Grant vs Australian
Knitting Mills (AKR) - 1936.This was a landmark case in the development of negligence law in Australia. Whether a
duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame vs
State of New South Wales; Annetts vs Australian Stations Pty Ltd - 2002. Determining a duty for mental harm has
now been subsumed into the Civil Liability Act 2002 in New South Wales. The application of Part 3 of the Civil
Liability Act 2002 (NSW) was demonstrated in Wicks vs SRA (NSW); Sheehan vs SRA (NSW).
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Breach of duty: Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of
whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant
who knowingly (subjective, which is totally based on observation and personal prejudice or view) exposes the
plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial
risk of loss to the plaintiff/claimant, which any reasonable person (objective, which is totally based on ground facts
and reality without any personal prejudice or point of view) in the same situation would clearly have realized, also
breaches that duty.
However, whether the test is objective or subjective may depend upon the particular case involved. There is
a reduced threshold for the standard of care owed by children. In the Australian case of McHale vs Watson – 1966
McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12
year old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a
12 year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a
characteristic they share with others at that stage of development.
Certain jurisdictions also provide for breaches where professionals, such as doctors, fail to warn of risks
associated with medical treatments or procedures. Doctors owe both objective and subjective duties to warn and
breach of either is sufficient to satisfy this element in a court of law.
For example, the Civil Liability Act in Queensland outlines a statutory test incorporating both objective and
subjective elements. For example, an obstetrician (a physician specialized in obstetrics) who fails to warn a mother
of complications arising from childbirth may be held to have breached their professional duty of care. In Donoghue
vs Stevenson, Lord Atkin declared that "the categories of negligence are never closed"; and in Dorset Yacht vs Home
Office it was held that the government had no immunity from suit when they negligently failed to prevent the
escape of juvenile offenders who subsequently vandalize a boatyard.
In other words, all members of society have a duty to exercise reasonable care toward others and their
property. In Bolton vs Stone - 1951, the House of Lords held that a defendant was not negligent if the damage to the
plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, Miss Stone was struck on the
head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able to hit
a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would
fail because the danger was not reasonably or sufficiently foreseeable.
As stated in the opinion, 'reasonable risk' cannot be judged with the benefit of hindsight. In Roe vs Minister
of Health, Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence
on the part of medical professionals accused of using contaminated medical jars, since contemporary standards
would have indicated only a low possibility of medical jar contamination.
Intention and/or malice: Further establishment of conditions of intention or malice where applicable may
apply in cases of gross negligence.
Causation: In order for liability to result from a negligent act or omission, it is necessary to prove not only
that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act
and the negligence.
Factual causation (actual cause): For a defendant to be held liable, it must be shown that the particular acts
or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation
between one's breach of duty and the harm that results to another can at times be very complicated. The basic test
is to ask whether the injury would have occurred 'but for', or without, the accused party's breach of the duty owed
to the injured party.
In Australia, the High Court has held that the 'but for' test is not the exclusive test of causation because it
cannot address a situation where there is more than one cause of damage. When 'but for' test is not satisfied and
the case is an exceptional one, a commonsense test 'Whether and Why' test will be applied. Even more precisely, if a
breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value
of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven
with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which
sometimes drove compensating companies out of business.
Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being
exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an
indeterminate class”. It is said a new question arises of how remote a consequence a person's harm is from
another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the
U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S.
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terminology (to do with the chain of events between the action and the injury) should not be confused with the
'proximity test' under the English duty of care (to do with closeness of relationship).
The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to
avoid it, how could anyone be responsible? For instance, in Palsgraf vs Long Island Rail Road Co. the judge decided
that the defendant, a railway, was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was
hit by coinoperated scale which toppled because of fireworks explosion that fell on her as she waited on a train
platform. The scales fell because of a far-away commotion but it was not clear that what type of commotion caused
the scale to fall,either it was the explosion's effect or the confused movement of the terrified people. A train
conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the
train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the
package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the
platform. Which became the cause of commotion on platform and as a consequence, the scales fell. Because Palsgraf
was hurt by the falling scales, she sued the train company who employed the conductor for negligence.
The defendant train company argued it should not be liable as a matter of law, because despite the fact that they
employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal,
the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the
defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges
dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of
foreseeability, because all men owe one another a duty not to act negligently.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's
view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no
duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the
jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In
jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate
cause if they wish the court to take the case away from the jury.
Remoteness takes another form, seen in The Wagon Mound (No. 2). The Wagon Mound was a ship in Sydney
harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the
danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to
continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down
the wharf. The Privy Council determined that the wharf owner 'intervened' in the causal chain, creating a
responsibility for the fire which canceled out the liability of the ship owner. In Australia the concept of remoteness,
or proximity, was tested with the case of Jaensch v Coffey. The wife of a policeman, Mrs Coffey suffered a nervous
shock injury from the aftermath of a motor vehicle collision although she was not actually at the scene at the time of
the collision. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an
injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the
collision. Here there was sufficient causal proximity. See also Kavanagh v Akhtar,[32] Imbree v McNeilly, 33 and
Tame v NSW.

Injury
Even though there is breach of
duty, and the cause of some
injury to the defendant, a
plaintiff may not recover unless
he can prove that the
defendant's breach caused a
pecuniary injury. This should
not be mistaken with the
requirements that a plaintiff
prove harm to recover. As a
general rule, a plaintiff can only
rely on a legal remedy to the
point that he proves that he
suffered a loss; it was
reasonably foreseeable. It
means something more than
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pecuniary loss is a necessary

element of the plaintiff's case
in negligence. When damages
are not a necessary element, a
plaintiff can win his case
without showing that he
suffered any loss; he would be
entitled to nominal damages
and any other damages
according to proof. (See
Constantine v Imperial Hotels
Ltd [1944] KB]).
Negligence is different in that
the plaintiff must prove his
loss, and a particular kind of
loss, to recover. In some cases,
a defendant may not dispute
the loss, but the requirement is
significant in cases where a
defendant cannot deny his
negligence, but the plaintiff
suffered no pecuniary loss as a
result even though he had
suffered emotional injury or
damage but he cannot be
compensated for these kind of
losses.The plaintiff can be
compensated for emotional or
non-pecuniary losses on the
condition that If the plaintiff
can prove pecuniary loss, then
he can also obtain damages for
non-pecuniary injuries, such as
emotional distress.
The requirement of pecuniary
loss can be shown in a number
of ways. A plaintiff who is
physically injured by allegedly
negligent conduct may show
that he had to pay a medical
bill. If his property is damaged,
he could show the income lost
because he could not use it, the
cost to repair it, although he
could only recover for one of
these things.
The damage may be physical,
purely economic, both physical
and economic (loss of earnings
following a personal injury,[34])
or reputational (in a defamation
case).
In English law, the right to claim
for purely economic loss is
limited to a number of 'special'
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and clearly defined

circumstances, often related to
the nature of the duty to the
plaintiff as between clients and
lawyers, financial advisers, and
other professions where money
is central to the consultative
services.
Emotional distress has been
recognized as an actionable
tort. Generally, emotional
distress damages had to be
parasitic. That is, the plaintiff
could recover for emotional
distress caused by injury, but
only if it accompanied a
physical or pecuniary injury.
A claimant who has suffered
only emotional distress and no
pecuniary loss would not
recover for negligence.
However, courts have recently
allowed recovery for a plaintiff
to recover for purely emotional
distress under certain
circumstances. The state
courts of California allowed
recovery for emotional distress
alone – even in the absence of
any physical injury, when the
defendant physically injures a
relative of the plaintiff, and the
plaintiff witnesses it.[35]
The eggshell skull rule is a legal
doctrine upheld in some tort
law systems, which holds that a
tortfeasor is liable for the full
extent of damage caused, even
where the extent of the damage
is due to the unforeseen frailty
of the claimant. The eggshell
skull rule was recently
maintained in Australia in the
case of Kavanagh v Akhtar.[32]
Damages place a monetary
value on the harm done,
following the principle of
Damages
restitutio in integrum (Latin for
"restoration to the original
condition"). Thus, for most
purposes connected with the
quantification of damages, the
degree of culpability in the
breach of the duty of care is
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irrelevant. Once the breach of

the duty is established, the only
requirement is to compensate
the victim.
One of the main tests that is
posed when deliberating
whether a claimant is entitled
to compensation for a tort, is
the "reasonable person".[36] The
test is self-explanatory: would a
reasonable person (as
determined by a judge or jury),
under the given circumstances,
have done what the defendant
did to cause the injury in
question; or, in other words,
would a reasonable person,
acting reasonably, have
engaged in similar conduct
when compared to the one
whose actions caused the
injury in question? Simple as
the "reasonable person" test
sounds, it is very complicated.
It is a risky test because it
involves the opinion of either
the judge or the jury that can be
based on limited facts.
However, as vague as the
"reasonable person" test
seems, it is extremely
important in deciding whether
or not a plaintiff is entitled to
compensation for a negligence
tort.
Damages are compensatory in
nature. Compensatory
damages addresses a
plaintiff/claimant's losses (in
cases involving physical or
mental injury the amount
awarded also compensates for
pain and suffering). The award
should make the plaintiff whole,
sufficient to put the plaintiff
back in the position he or she
was before Defendant's
negligent act. Anything more
would unlawfully permit a
plaintiff to profit from the tort.
There are also two other
general principles relating to
damages. Firstly, the award of
damages should take place in
the form of a single lump sum
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payment. Therefore, a
defendant should not be
required to make periodic
payments (however some
statutes give exceptions for
this). Secondly, the Court is not
concerned with how the
plaintiff uses the award of
damages. For example, if a
plaintiff is awarded $100,000
for physical harm, the plaintiff
is not required to spend this
money on medical bills to
restore them to their original
position - they can spend this
money any way they want.[37]
Types of damage
Special damages -
quantifiable dollar losses
suffered from the date of
defendant's negligent act
(the tort) up to a specified
time (proven at trial). Special
damage examples include
lost wages, medical bills, and
damage to property such as
one's car.
General damages - these are
damages that are not
quantified in monetary terms
(e.g., there's no invoice or
receipt as there would be to
prove special damages). A
general damage example is
an amount for the pain and
suffering one experiences
from a car collision. Lastly,
where the plaintiff proves
only minimal loss or damage,
or the court or jury is unable
to quantify the losses, the
court or jury may award
nominal damages.
Punitive damages - Punitive
damages are to punish a
defendant, rather than to
compensate plaintiffs, in
negligence cases. In most
jurisdictions punitive
damages are recoverable in a
negligence action, but only if
the plaintiff shows that the
defendant’s conduct was
more than ordinary
negligence (i.e., wanton and
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willful or reckless).
Aggravated damages - In
contrast to exemplary
damages, compensation are
given to the plaintiff when the
harm is aggravated by the
defendant's conduct. For
example, the manner of this
wrongful act increased the
injury by subjecting the
plaintiff to humiliation,
insult.[38]