NEGLIGENCE

Basic Principles
Definition
Negligence in its ordinary meaning refers to; being careless, doing something or failing to do something
an ordinary reasonable person would do or wouldnt do.
In Lochgelly Iron & Coal v McMullan; Lord Wright coined the term statutory negligence. He affirmed
the need for damage as an essential element of actionable negligence, saying:
In strict legal analysis, negligence means move than heedless or careless conduct, whether
in omission or commission. It properly connotes the complex concept of duty, breach, and
damage thereby suffered by the person to whom the duty was owing. legal definition
Mere carelessness is not sufficient for negligence as that would open floodgates without any limit on the
defendants liability. Thus as a trot, it means more than just carelessness.
Negligence as a tort is a breach of a legal duty of care which causes or results in damage to the claimant.
It is a tripartite Structure i.e. a 3 fold test:
1. Duty of care (is a question of law) claimant must prove that the defendant owed him a duty of
care.
2. Breach of duty (is a question of fact) the defendant breached that duty of care.
3. Causation it was that breach that caused the claimant damage.
It is on the claimant to satisfy the tripartite structure.

Duty of Care
Duty of care (DOC) is defined as a relationship created by law between 2 or more persons which imposes an
obligation upon one towards another to act with care and as a reasonable person.

Situations where Duty of Care is automatically established:

1. It is well established that drivers owe a DOC to all other users
2. Doctors always we a DOC to their patients
3. Teachers owe a DOC to their students
4. Employers owe a DOC to their employers

In other situations DOC is established through a test. Sometimes claimant is the only person to whom DOC is
owed sometimes the claimant belongs to a huge class e.g. Drivers and users of that road.

Breach of Duty of Care

Courts ask 2 questions to establish whether there was a breach or not:
1. What is the standard of care that is required from the defendant?
2. Whether the defendant fell below the socially acceptable standard of care?

Causation
The claimant must show it is the breach of duty by the defendant that caused or suffered by the claimant.
The damage must be recognizable, reasonable, and valid. The claimant must prove that the damage suffered
flows from the breach of duty not only in fact but also at law.
Basically, the claimant has to prove a chain of causation in fact and at law.

Liability in Negligence = DOC + Breach + Causation Defences

Courts were very restrictive towards scope of negligence and sometimes very lenient. This was because of
certain policy considerations.

Policy Considerations
The underlying idea of negligence as a tort is whenever the defendants actions or conduct falls below the
socially acceptable standards of care these SOC are never constant thus, the courts are restrictive or lenient
depending on the society and it changing standards.
Other policy considerations which play a part in the courts decision are:
1. strength of the bargaining parties
2. strength of the evidence before the courts
3. financial resources available to the defendant
These policy considerations are taken into account at each stage of the 3 fold test to prove negligence.