Negligence

by Snježana Husinec

Negligence

failure to exercise the care toward otherswhich a reasonable or prudent person

would do in the circumstances, or taking action which such a reasonable

person would not

Donoghue vs. Stevenson (1932)

Two types of negligence

a) Civil (minor personal injury

and property damage)

a) Criminal (results in death where

there was no intention of injury)

Elements of negligence claim

A) Duty of care (towards a plaintiff/claimant)

B) Breach of duty (on the part of the defendant)

C) Causation (cause and effect connection between the breach and the harm)

D) Damage (injury or harm as a consequence of the breach)

A) Duty of care

a person owes a duty of care to another when the reasonable person would foresee that the other will be exposed to the risk of injury

Eg. – a driver of a vehicle owes a duty to anyone within the area of risk when moving - other road users, pedestrians, the owner of adjacent land and buildings

B) Breach of duty

unreasonable running

a risk and harming to the others or their property

C) Causation - a two stage inquiry

I FACTUAL CAUSATION – a defendant is held liable if the particular acts or omissions were the cause of the loss or damage sustained

basic test of causation – but-for test “But for the defendant’s act, would the harm have occurred?” (“Would you be harmed without my breach of duty?” – if NO – I am liable)

II LEGAL CAUSATION (US – the doctrine of proximate cause)

- the defendant is liable only for the foreseeable consequences of his or her act – remoteness (“Was the chain of causation broken?”)

D) Damage

provable injury – a precondition for successful negligence suits

Damage may be:

a) Physical (personal injury)b) Economic (pure financial loss)c) Both (financial loss of earnings consequent

to a personal injury)d) Reputational (in a defamation case)e) Emotional distress

Damages

a sum of money awarded by the court for harm suffered by the

plaintiff/claimant

Essential expressions

• to commit negligence• act or omission• foreseeable

harm/injury • to cause harm• a reasonable/prudent

person• duty of care• breach of duty to

breach duty

causation - factual causation - legal causation / proximate cause a damage = an injury damages=

compensation to award damages• a law report• negligence≠ reasonableness