17 Negligence

Previous session
• Defamation
• Defamatory meaning, publication, of and concerning the person
• Vicarious liability
• Employer/employee, within the scope of employment
A little bird told me…
Defamation
Vicarious liability
Negligence
The law of negligence
• Negligence makes a person legally responsible for the harm he causes
to other people if he is not as careful as he should be.
• There are situations that an action cannot be brought for breach of

contract because the injured party is not a party to a contract and
cannot therefore claim damages for breach of contract.
• There are many circumstances in which one person owes a legal duty of
care to another. For example, a firm of accountants owes a legal duty of
care to their clients when compiling their clients’ accounts.
Different scenarios
• Discuss and answer questions in your worksheet.
• You are carrying your shopping. Every time another

person damages your shopping, that person must
pay you for the shopping. Is it right?
1)
• Imagine that someone bumps into you, causing you to drop the
shopping you are carrying, knocking down your apples and breaking
some bottles.
• What does it mean that that person should pay the cost of the
damaged shopping?
2)
• The bumper bumped only because he was pushed by a passer-by: the
bumper was not in control of his body and only just avoided being
hurt. Should the bumper pay you for the damage?
3)
• The bumper did indeed bump you, but only because you stepped out
into the road without looking, and thus the fact that the bumper
bumped was entirely your responsibility. Should the bumper pay you
for the damage?
4)
• The bumper bumped only because he slipped on some black ice
which was not reasonably visible; the bumper otherwise took
appropriate care while walking along. Should the bumper pay you for
the damage?
5)
• You were carrying the shopping to the check-out counter in a
supermarket in order to buy it when the bumper bumped. Should the
bumper pay you for the damage? Or pay someone else?
Why should the person compensate the other?
• Who was harmed? Duty
• Who caused the problems? Breach
• What was the harm? Damages
• Why did the person cause the Causation

harm?
The general principles of liability for
negligence
In order to succeed in an action for negligence, the injured party (the plaintiff) must
establish the following:
• Duty that the defendant owed a legal duty of care to the

plaintiff;
• Breach that the defendant was in breach of that duty;
• Damages the plaintiff must have suffered actual harm to person or

property;
• Causation that the plaintiff’s injuries (damage) are a
result/consequence of the defendant’s beach of duty; and
that such damage is not too remote (There should be
actual or proximate causes).
1. Duty of care
• Everyone owes a duty of care to his neighbor. The duty of care is a duty “to take
reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbor”.
• The legal answer to “who is my neighbor” is “persons who are so closely and directly
affected by my act that I ought to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question”.
• In other words, everyone owes a duty of care to people they ought to foresee being
affected by their activities.
• Today the concept of neighborhood is generally described as proximity.

• The question which has to be asked is whether there is sufficient proximity between
the parties such that one owes a duty of care to the other.
Duty
• The defendant hurts both A and
B. • The defendant is liable for
• The defendant owes a duty to A. negligence against A.
• The defendant is not liable for
• The defendant owes no duty to negligence against B.
B.
Key words
• Reasonableness
(Reasonable)
• Foreseeability
(Foreseeable)
The standard of reasonable person
• The reasonable person calculates:
• the probability of harm
• the gravity of the resulting injury
• the burden of adequate precautions.
What makes a reasonable person?
• Physical Attributes
• The reasonable person usually has the same physical attributes as the
defendant.
• Mental Attributes
• The reasonable person is always deemed to have the intelligence of at least
an average person.
Exceptions
• The low IQ defendant = an average person < the high IQ defendant
• Intelligence, knowledge, special skills, talents, expertise
• The standard of care is the care of a reasonable, prudent, sane person

of average intelligence and knowledge with the physical condition of
the defendant.
Other consideration
• Custom and Usage
• important, but not decisive
• Statutory standards
• It can supplant the common law rule of reasonable care 。
2. Breach of duty
• Once a legal duty of care has been established, the plaintiff has to
prove that the defendant has in fact breached that duty.
• This is decided by the test of “reasonable person.” If a reasonable

person knows the conduct would put other people at unreasonable
risk of harm, then the defendant commits a breach of duty of care.
Establishment of breach
• How does the plaintiff establish breach?
• (1) The plaintiff must establish the events that actually happened
during the alleged breach.
• (2) The plaintiff must establish what the standard of care was to
which the defendant should have conformed the conduct.
• (3) The third, and most important, ingredient is that the plaintiff must
show that the defendant's conduct was unreasonable.
Balancing factors of a reasonable alternative
• (1) The cost of making the defendant’s activity safer
• (2) The social usefulness of the activity in which the defendant
engaged and which produced the risk.
• (3) Courts also consider the probability that some harm will result to
persons in the plaintiff's position from the defendant's activity, as well
as the risk of harm from the plaintiff's proposed alternative conduct.
3. Consequential damage
• The plaintiff must prove that he has suffered loss or damages as result
of the defendant’s breach of duty.
• In other words, the damages must be caused by the breach of duty.
This is sometimes described as a causal link between the damage or
loss and the breach of duty or simply as “causation”.
• If the damages is caused by some other factor, there is no causal link

and the defendant will not be liable.
• Even if the plaintiff can establish the causal link, the defendant is liable
only for loss or damage which is reasonably foreseeable.
4. Actual and proximate causation
• The Direct cause (but-for)
• (1) the defendant's negligent conduct happened before the injury, and
• (2) the injury would not have occurred absent defendant's negligent conduct.
• Concurrent causes
• (1) multiple acts or forces combined to cause an injury and
• (2) neither force alone would have been sufficient to cause the injury.
• The Substantial factor

• (1) multiple acts or forces combine, at the same time, to cause an injury, and
• (2) either by itself would have been sufficient, and
• (3) it is impossible to tell which force caused what portion of the injury, if any.
Example
• Amy and Joey are both driving on the road. Amy, driving her car
negligently, causes Joey to swerve to the side in order to avoid hitting
Amy. In swerving to avoid Amy, Joey drives his own car negligently,
causing him to crash into Chandler, a pedestrian, injuring him.
Chandler sues both Amy and Joey.
Contributory negligence
• The court has the power to divide liability for negligence between a
number of parties.
• It may be that several defendants are involved in a case.
• It may be that the plaintiff is found to be partly at fault.
• The plaintiff’s recovery is reduced by the plaintiff’s own percentage

allocation of fault. Thus, if the plaintiff is 51 percent at fault, and the
defendant is 49 percent at fault, the plaintiff only recovers 49 percent
of the damages.
Harm
• Basic types of harms:
• Physical harm
• Emotional harm
• Economic harm
• Which is always a harm in negligence?

Next session
• Negligence
• Product liability

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Previous session

• There are situations that an action cannot be brought for breach of

• You are carrying your shopping. Every time another

• Who caused the problems? Breach

• What was the harm? Damages

• Why did the person cause the Causation

• Duty that the defendant owed a legal duty of care to the

• Damages the plaintiff must have suffered actual harm to person or

• Today the concept of neighborhood is generally described as proximity.

• Intelligence, knowledge, special skills, talents, expertise

• The standard of care is the care of a reasonable, prudent, sane person

• This is decided by the test of “reasonable person.” If a reasonable

• If the damages is caused by some other factor, there is no causal link

• The Substantial factor

• The plaintiff’s recovery is reduced by the plaintiff’s own percentage

• Which is always a harm in negligence?

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