NEGLIGENCE

NEGLIGENCE

I	NTRODUCTION
L	AW
A	PPLICATION
C	ONCLUSION

INTRODUCTION

Negligence is defined as the breach of a legal duty to take care which results in damage to the plaintiff, undesired by defendant. It consists of three elements which are duty of care owed by the defendant by the plaintiff, breach of duty of care by the defendant and the consequential damage to the plaintiff.

LAW

DUTY OF CARE

The first element is duty of care which is defined as an obligation recognised by law to avoid conduct fraught with unreasonable risk of danger to others.

The principle to ascertain the existence of duty of care is the neighbour principle laid down in the case of Donoghue v Stevenson. In this case, the defendant drank ginger beer from an opaque bottle bought by her friend then, realised a decomposed snail in it and consequently fell ill. It was held that a person must take reasonable care to avoid acts or omissions which can reasonable foreseen to injure a neighbour. A neighbour are persons who are closely and directly affected by my act. Hence, the defendant is liable.

The neighbour principle is an objective test which the court will ask the question: would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff? If the answer is no, the plaintiff is not a “neighbour” of the defendant, and no duty of care arises and vice versa.

BREACH OF DUTY

The second element is breach of duty which occurs when the defendant does something that is perceived to be below the minimum standard of care, which is measured through the standard of a reasonable man.

The test whether there has been breach of duty is laid down in the case of Blyth v Brimingham Waterworks which held that negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do. A reasonable man is an ordinary man expected to not have any particular skills. The court must decide in the circumstances of the case, what would a reasonable man had foreseen.

Reasonably foreseeable is whether a knowledge is known to a reasonable man. The case to illustrate this is Roe v Minister of Health where the crack in the aesthetic tube caused it to be contaminated and resulting to the defendant to be paralyzed. It was held that the doctor was not liable as the knowledge of the crack causing contamination was not known in the medical practice at that time.

The factors that the courts should consider are magnitude of the risk, importance of the object to be obtained and practicability of precautions.
In magnitude of the risk, the court considers the likelihood of the injury and the seriousness of the injury. The case to illustrate this is Bolton v Stone in which the cricket ball had hit the plaintiff surpassing the high walls and nets. It was held the defendant was not liable because they had taken precautions that reduces the likelihood and seriousness of injury.

In importance of object to be obtained, is it necessary to balance the risk against the consequences of not taking it. The case relevant is Watt v Hertfordshire where a fireman was injured in the lorry that was not well equipped to carry the heavy jack. It was held that the fire authorities weren’t liable because the jack was necessary to save a life.

In practicability of precautions, the risk must be balanced against the practical measures necessary to eliminate it. The case relevant is Latimer v AEC in which the occupiers tried to get rid of the effects of the flood in the factory however, the plaintiff got injured. It was held that closing the factory is not a practical precaution for a slippery floor.

Damage

The third element is damage which is determined by the but-for test in which the question: but-for the defendant’s breach of duty, would the plaintiff have suffered damage? If yes, then the defendant’s breach did not cause plaintiff’s injury.

The case to illustrate this is Barnett v Chelsea in which the plaintiff’s husband consulted the doctor but was dismissed and later, he died from poisoning. It was held that even if the man was treated, he would have still died.

The next test is the remoteness of damage which the question: whether a reasonable man would foresee the damage. If yes, the damage is not remote and is liable.

The case to illustrate this is The Wagon Mound which the oil that leaked into the harbour was caught on fire from welding sparks resulting to damage of the wharf. It was held that the damage was not foreseeable as the oil was not flammable.

APPLICATION

Prove each elements

·         Duty of care

o   Neighbour principle

·         Breach of duty

o   Reasonable man

o   Reasonably foreseeable

o   Magnitude of risk

o   Importance of object to be obtained

o   Practicability of precautions

·         Damage

o   But-for test

o   Remoteness of damage

CONCLUSION

Hence, the elements are proven rendering the defendant liable. The plaintiff can claim compensation or damages.