21439215 negligence in torts

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Negligence

Negligence (Lat. negligentia, from negligere, to neglect, literally "not to pick up") is a legalconcept in thecommon lawl

ystems usually used to achieve compensation for injuries (not accidents). Negligence is a type oftortordelict (also known as a civil wronHowever, the concept is sometimes used incriminal law as well. "Negligence" is not the same as "carelessness", because someone might b

xercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence

an be generally defined asconduct that is culpable because it falls short of what a reasonable person would do to protect anotherindividuarom a foreseeable risks of harm. In the words ofLord Blackburn,

"those who go personally or bring property where they know that they or it may come into collision with the persons or

roperty of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision."

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recov

amages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation forharmto

ody, property, mental well-being, financial status, orintimate relationships.However, because negligence cases are very fact-specific, this

eneral definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by

ccidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must

roved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of neglige

ases.

Elements of negligence claims

Negligence suits have historically been analyzed in stages, calledelements, similar to the analysis of crimes. Common la

urisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every

egligence case are: duty, breach, causation, and damages. Each are defined and explained in greater detail in the paragraphs below.

Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty,

reach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct,

epending on how much specificity someone is seeking. "The broad agreement on the conceptual model," writes Professor Robertson of th

University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to

warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."

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[edit] Duty of care

The case ofDonoghue v. Stevenson[2] [1932] illustrates the law of negligence, laying the foundations of thefault principle around the

Commonwealth. Plaintiff Ms. Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a

manufacturer under a certain Mr. Stevenson of Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly

ecomposedsnail. She then sued Mr. Stevenson, though there was no relationship of contract, as the friend had made the payment . As ther

was nocontract the doctrine ofprivity prevented a direct action against the manufacturer, Mr David Stevenson. In his ruling, justice LordMacMillan presiding over the case defined a new category of tort, (which is really not based on negligence but on what is now known as th

implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previ

ases about people hurting each other.Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not h

hy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably

ave them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonaoreseeable harm must be compensated. This is the first principle of negligence. In England the more recent case ofCaparo v. Dickman [19

ntroduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity betwe

he plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts instablishing a duty of care; much of the principle is still at the discretion of judges.

[edit] Breach of duty
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InBolton v. Stone the English court was sympathetic to cricket players

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was

reached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimasubstantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which a

easonable person in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not restricted to professionals or persons under written or oral contract; all members of society have a d

o exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward othe

nd their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts ofBolton v. Stone[

951 legal case decided by the House of Lordswhich established that a defendant is not negligent if the damage to the plaintiff was not a

easonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck in the head by a cricket ball while standing outsid

ouse. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Althouhe was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the

pinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said inRoe v. Minister of Health[4] , the past sho

ot be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulti

hem for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contaminati

Even if some were harmed, the professionals took reasonable care for risk to their patients.

United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)

For the rule in the U.S., see: Calculus of negligence

[edit] Factual causation

Main article:Causation (law)

For a defendant to be heldliable, it must be shown that the particular acts or omissions were the cause of the loss or dam

ustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times b

ery complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precis

f 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 cause

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the sim

dea of a party causing harm to another are issues oninsurance bills and compensations, which sometimes drove compensating companies

f business.

[edit]Legal causation or remoteness

Negligence can lead to this sort of accident - a train wreckatGare Montparnassein 1895.

ometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the

words ofCardozo, J.,"liability in an indeterminate amount for an indeterminate time to an indeterminate class." [5] It is said aew question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence

s 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee itappening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the

njury) 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

ould anyone be responsible?

or instance, inPalsgraf v. Long Island Rail Road Co.[6] the judge decided that the defendant, a railway was not liable for an

njury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a trainlatform. The scales fell because of a far-away commotion. A train conductorhad run to help a man into a departing train.
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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

ausing shockwaves to travel through the platform. As a consequence, the scales fell.[7] Because Ms. Palsgraf was hurt by the

alling scales, she sued the train company who employed the conductor for negligence.[8].

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the

mployee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the court agreed,owever, it was divided when it came time to explain the reason why the defendant was not liable. One view was that the

efendant owed no duty of care to the defendant, because a duty was owed only to foreseeable plaintiffs. This was the view

dvanced by Judge Cardozo. The other view was that the defendant owed a duty to the defendant, regardless of

oreseeability, because all men owe one another a duty not to act negligently. This was the view advanced by Judge Andrews.

According to Andrews, however, the defendant still should not be liable because, despite having owed a duty, and breached

t, the breach was not the proximate cause of the injury.

This difference of opinion in the role of remoteness continues to trouble American courts. Courts follow Cardozo's view have

reater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the

laintiff, 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

ule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case

way from the jury.

Remoteness takes another form, seen in the Wagon Mound No. 2[9] . The Wagon Mound was a ship inSydneyharbour. TheWagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner

bout the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work

o 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 UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for

he fire which canceled out the liability of the ship owner. In Australia, the concept of remoteness, or proximity, was tested

with the case ofJaensch v. Coffey.[10] The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the

ftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld

n addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficientroximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.

edit] Damage

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover for injury

nless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements

hat a plaintiff prove harm to recover for it. As a general rule, a plaintiff can only recover legal remedy to the point that he

roves that he suffered a loss. It means something more that pecuniary loss is a necessary element of the plaintiff's case inegligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any

oss; he would be entitled toNominal damagesand any other damages according to proof. Negligence is different in that the

laintiff must prove his loss, and a particular kind of loss, to recover anything. In some cases, a defendant may not dispute the

oss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no

oss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as

motional distress.

The pecuniary loss requirement can be shown in a number of ways. A plaintiff who is physically injured by allegedlyegligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost

ecause he could not use it, the cost to repair it (although he could only recover for one of these things). For example, if a

laintiff is in a car accident, he may have evidence of how much it cost for a professional to repair the car.

The damage may be physical (e.g.personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings

onsequent on a personal injury), reputational (e.g. in adefamationcase), or in relationships where a family may have lost a

wage earner through a negligent act. In English law, at least, the right to claim for purely economic loss is limited to a
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umber of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients

nd lawyers, financial advisers, and other professions where money is central to the consultative services.

Emotional distress has been recognized as compensable in the case of negligence. The general rule was that emotionalistress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it

ccompanied a physical or pecuniary injury. A plaintiff who came to court having suffered only emotional distress and no

ecuniary loss would not win a suit for negligence. However, a modern trend allows recovery for a plaintiff to recover foregligence causing him purely emotional distress under certain circumstances. The state courts ofCalifornia allowed

ecovery for emotional distress alone even in the absence of any physical injury to the plaintiff, when the defendant

hysically injures a relative of the plaintiff, and the plaintiff witnesses it.[11]

edit] Damages

Main article:Damages

Damages place a monetary value on the harm done, following the principle ofrestitutio in integrum(the Latin for

restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of

ulpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to

ompensate the victim. But, particularly in the U.S.,punitiveor exemplary damages may be awarded in addition to

ompensatory damages to reflect the egregious nature of the defendant's conduct, e.g. that the defendant was malicious orallously indifferent.

One of the main tests that is posed when deliberating whether a defendant is entitled to compensation for a tort, is the

reasonable person". The test is self-explanatory: would a reasonable person (as determined by a judge or jury) be damaged

y the breach of duty. Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it

nvolves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable

erson" test seems, it is extremely important in deciding whether or not a defendant is entitled to compensation for a

egligence tort.

Damages are, in general, compensatory and not punitive in nature. This means that the amount paid matches the

laintiff/claimant's actual loss (in cases involving physical injury, the amount awarded should aim to compensate for the pain

nd suffering). It is not the court's intention to punish the defendant. The award should be sufficient so as to put the

laintiff/claimant back in the position he or she was before the tort was committed and no more, because otherwise the

laintiff/claimant would actually profit from the tort. The award of damages may include the following heads of damage:

Special damages - losses suffered from the date of the tort up until the date of trial and which can

e precisely quantified in monetary terms.

General damages - losses that cannot be quantified exactly in monetary terms (the actual pain,

uffering, and loss of amenity caused by the negligent act), as well as expected future losses from the date of trial (e.g.

ontinuing pain and suffering, and loss of earnings). Where the plaintiff/claimant proves only negligible loss or damage, or

he court is unable to quantify the losses, the court may awardnominal damages.

Punitive damages - are awards of amounts greater than those needed to compensate the victim and

re intended to deter intentional, usually malicious, wrongdoing. They are not available where only negligence has been

roved.
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21439215 negligence in torts

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