The Tort of Negligence (an overview)

Negligence is one of the torts. Some of the other torts are nuisance, deceit, trespass, and defamation of character. A tort is a civil wrong. Negligence is an important tort because the majority of civil actions are based on it. It protects against three different harms which are personal injury, damage to property, and economic loss. Negligence claims can involve many different situations such as people injured in a car accident suing the driver, patients suing their doctor or dentist for receiving the wrong treatment, suing an accountant for negligent advice, or suing the occupier of a property because of an accident on the premises.

For the tort of negligence, the defendant must owe the claimant a duty of care. The defendant must breach that duty of care and that breach must cause damage to the claimant. If the law says that the defendant does not have a duty of care towards the person or organisation, they have caused harm to then they will not be liable in negligence, no matter how serious the harm or obvious that it is their fault. In many cases it will be clear that a duty of care is owed. Such as, road users owe a duty of care to other road users.

For the duty of care claim to be successful it should pass the three stage Caparo test. The court will determine if the damage caused was reasonably foreseeable and if there was a relationship of proximity between the defendant and claimant. Finally, they will decide if it is just and reasonable to allow the claim.

When it comes to foreseeability the court will determine if a reasonable person in the same situation as the defendant would have foreseen the risk of causing damage by their actions. In Palsgraf v Long Island Railroad (1928) a member of the railway staff negligently pushed a passenger as he was boarding the train. This caused the man to drop his package which exploded as it contained fireworks. The explosion knocked over some scales which fell on the claimant stood a few feet away. The court decided that it was not reasonably foreseen that pushing the passenger would cause an injury to a person that was several feet away.

Proximity is about there being a relationship between the claimant and defendant. However, they do not need to know each other. It just needs to show that the defendant could reasonably expect that their actions could cause damage to the claimant. For example, a manufacturer selling a faulty product could predict that their product may cause damage to a customer.

Stage three, just and reasonable gives the court a final safety net to reject a claim even when the first two stages have been met. This is shown in Mcfarlane v Tayside Health Board (1999). The claimant fell pregnant because her partners vasectomy failed. She tried to claim for the costs of raising a child. The claimant was successful in receiving compensation for the pain and discomfort caused by the unwanted pregnancy but unsuccessful in claiming for the cost of raising a child, as most people would consider the birth of a healthy child to be a blessing and ultimately bring joy.

The courts may restrict imposing new duties of care in order to prevent an overload of cases as this could cause wider problems. For example, if it was too easy to sue an employer for an injury at work, it could put larger costs on businesses, which would mean increased costs for the consumer. As most cases will involve insurance companies. If the courts allow a new duty of care it will create higher risks for the insurance companies, meaning premiums rising for the consumer. If the claim involves hospitals or schools it would mean increased costs for the taxpayer. The courts will be taking all this into consideration when making their decision.

If you wish to have a conversation about a negligent situation you have been directly and negatively affected by, please contact the team here at Lawdit.

Written by Samuel Killoran who is a Law Student at Solent University.

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