NEGLIGENCE

There are four component parts which a Plaintiff must prove to establish negligence.  

The burden of proving each falls upon the Plaintiff.  

The four components are:-

• The Plaintiff was owed a duty of care;
• There was a breach of that duty of care;
• The Plaintiff suffered damage as a result of that breach;
• The damage suffered was not too remote.

FOUR MAIN SECTIONS OF NEGLIGENCE

• Duty of care
• Breach of duty
• Causation
• Remoteness

The “duty of care” is the responsibility one person or business has to be reasonably careful (or to use “reasonable care”) when dealing with others. In other words, the duty of care requires you to “look before you leap.”

In tort law, a person who violates the duty of care by acting negligently, wantonly, or recklessly is liable for any harm another person suffers as a result of the first person’s failure to be reasonably careful.

In most tort situations, the duty of care is the duty to act as a reasonable person would act.

In real life, the “reasonable person” does not exist; he is a creation of tort law, used to measure whether a real person’s actions match up to what the reasonable person would have done. The imaginary reasonable person always pays attention and acts carefully. He considers the possibility that someone will get hurt by his actions and chooses the safer course if there is one.

In a tort case where the reasonable person standard applies, the defendant’s actions are compared to what the reasonable person would have done in the same situation. If the defendant’s actions don’t live up to the reasonable person’s actions, the defendant may be found negligent and be liable for any injuries his negligence caused.

A seminal case in establishing whether or not a duty of case exists is the case of Donoghue v Stevenson [1932] AC 562. 

The facts were that Mrs Donoghue and a friend visited a café wherein the Plaintiff’s friend bought her a bottle of ginger beer.  The bottle was made of opaque glass and when filling the Plaintiff’s glass the remains of a decomposed snail, which had somehow found its way into the bottle at the factory, floated out.  The Plaintiff suffered from psychiatric shock and gastroenteritis as a result.  Since the Plaintiff had not bought the bottle of ginger beer herself she could not make a claim in contract.  She therefore brought an action against the manufacturer of the ginger beer.  

The House of Lords had to decide whether a duty of care existed as a matter of law.  It held that the manufacturer owed the Plaintiff a duty to take care that the bottle did not contain foreign bodies which would cause her personal harm.  This case first established that a manufacturer of goods owes a duty of care to their ultimate consumer.  

In Caparo Industries Plc v Dickman [1990] 2 AC 605 the Court considered the circumstances in which a duty care may arise.  

The Court set out three issues which a Court must consider to establish whether or not a duty of care exists.  

These issues are:-

• There must be a reasonable foresight of harm;
• There must be sufficient proximity of relationship between the Plaintiff and Defendant;
• It must be fair, just and reasonable to impose a duty of care.

Specialized tort situations use a specialized duty of care.

In a medical malpractice case, for instance, a doctor’s actions are compared to the actions a reasonable doctor in his field would have taken, not the actions a reasonable layperson would have taken.

Similarly, in legal malpractice an attorney’s duty of care is to act as a reasonable attorney would in that same situation.

Children and people with disabilities also have a slightly different duty of care. The duty of care for an adult with a disability is what a reasonable person with that disability would do. Most courts do not allow a disability to be an excuse for recklessness or poor planning, but they do recognize that some disabilities prevent the person who has them from taking the full range of options available to a non-disabled adult.

Very young children cannot be liable for negligence in most states, because they are not yet capable of understanding how to make a reasonable choice. Once a child reaches the age of six or seven, however, he is held to the same duty of care as a reasonable child of the same age and experience would have used.