Negligence

Negligence can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. In the words of Lord Blackburn:

"those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision." Fletcher v Rylands ([1866] LR 1 Ex 265) The case of Donoghue v Stevenson [1932] AC 532 illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Pursuer (the plaintiff), Ms Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a Stevenson in Scotland. While drinking the drink, Ms Donoghue discovered the remains of an allegedly decomposed snail. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Andrew Smith.

In his ruling, Justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent of tort), (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort - "products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour.' He then went on to define neighbour 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." Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

The following elements need to be considered when considering suing in negligence, or defending against a claim:

  1. Duty, and breach
  2. Damage
  3. Causation
  4. Novus actus interveniens
  5. Remoteness
  6. Contributory negligence

Duty, and breach

First, a defendant must owe a duty of care to you, as plaintiff. If there is no duty, the defendant cannot be sued in negligence. The duty must have been breached by the defendant.

Damage

In order to sue another person in negligence, you must have suffered damage. You carry the burden of proof as the plaintiff. However, in some cases a statute may provide that the defendant is liable unless he or she proves that the relevant act or omission occurred without negligence.

The standard of proof in a civil case is the balance of probabilities. The plaintiff must prove a duty owed to the plaintiff, a breach of that duty, and damage to the plaintiff caused by breach of that duty. Damage is the gist of the action and thus there is no liability without damage. Where the plaintiff establishes these factors on the balance of probabilities the burden of proof is shifted and it is for the defendant to show that he or she has taken all reasonable precautions. There will usually be no liability for damages in negligence if it can be shown that the defendant acted either in accordance with approved standard practice, or in reaction to some sudden and unexpected emergency which that defendant acted reasonably to avoid.

Causation

Plaintiffs must prove that every item of loss for which they claim damages is connected to the defendant's wrong in the sense that the wrong caused or materially contributed to that loss. The purpose of doing this is to assign legal responsibility, as between the plaintiff and defendant, for that loss. Causation is a factual issue and must be decided in accordance with common sense and the understanding of the ordinary person in the street.

Novus actus interveniens

If a force intervenes between the defendant's act or omission and the plaintiff's loss, this may break the chain of causation so that the defendant is not liable for that loss. Such an intervening force is often referred to as a "novus actus interveniens". Whether or not such a force has broken the chain of causation is determined, as are questions of causation generally, as a matter of fact, and according to common sense. The defendant bears the burden of proving that the chain of causation was broken by an intervening force.

Remoteness

A plaintiff must show not only that the defendant caused the damage for which the plaintiff seeks to recover, but also that that kind of damage was not too remote from the defendant's act or omission. The limits of what is considered not too remote are set, in tort, by what was reasonably foreseeable by the defendant and, in contract, by what was within the reasonable contemplation of the parties. These rules of remoteness limit the amounts recoverable to those that are not only connected to the act but that are reasonable having regard to the nature of the act and the interests of the parties and society.

In principle the issue of remoteness arises only after the issue of causation has been dealt with. The tests of remoteness are not, in themselves, tests of "causation", as instead they mark the limits beyond which wrongdoers will not be held responsible for damage resulting from their wrongful acts.

Only the kind of damage, not necessarily the precise details or the extent of damage, must be foreseeable.

Contributory Negligence and Apportionment Between the Parties

The Contributory Negligence Act 1947 abolished the common law rule that a successful defence of contributory negligence would defeat the plaintiff's claim entirely. The Act instead allows the Court to apportion responsibility between the parties and to reduce the plaintiff's damages accordingly. If a person suffers damage as the result partly of his or her own fault and partly as the result of the fault of any other person or people, a claim for that damage will not be defeated by reason of the fault of the person suffering the damage. In these cases damages recoverable for the damage must be reduced to an extent that the Court thinks is just and equitable, having regard to the plaintiff's share in the responsibility for the damage.

Apportionment for contributory negligence comes into play only after the plaintiff's conduct satisfies the usual tests of causation and remoteness of damage. Therefore, negligent conduct by the plaintiff will not be taken into account if there is no causative link between that conduct and the damage, or if the damage is too remote in relation to the plaintiff's conduct.

If you have suffered damage as a result of someone's negligence, talk to Rennie Cox now about your potential remedies