INTRODUCTION TO THE LAW OF NEGLIGENCE

1.0 INTRODUCTION TO THE LAW OF NEGLIGENCE

Negligence as an independent tort is defined as the breach of a legal duty to take care - as a result of which -the plaintiff suffers damage.

1) Negligence can be defined as a failure to exercise the standard of care, where the doer, as a reasonable man should, by law, have exercised in particular circumstances.

2) Behaviors that cause unreasonable risks of harm to property

3) A breach of legal duty to take care, where the doer or defendant causes a damage to the plaintiff.

2.0 ELEMENTS

To succeed in an action for negligence - plaintiff must prove the elements of negligence:

2.1 THE DUTY TO TAKE CARE

·         a defendant will only be liable if he owes the plaintiff a duty to take care

·         Defined as individuals' responsibility to conduct themselves in a manner that creates no harm to other people.

·         The harm can either be direct physical harm or any action that negatively affects the welfare of others.

·         An individual will only be negligently liable if he or she is under a legal duty to take care.

·         This means that we can only hold an adult liable for negligence if he or she carelessly hits another's car, for example.

·         However, we may not be able to treat an underage in the same manner due to the fact that he or she is not 'fully' matured and, therefore, is not bound by the duty of care.

·         A duty of care exist in normal circumstances where if a person does not take the usual precautions, another person or his property may be injured/damaged

·         To test the existence of duty of care - Donoghue v. Stevenson - the neighborhood principle

The Neighbourhood Principle:

The rule that you are to love your neighbour becomes in law you must not injure your neighbour, …..you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. And the lawyer’s question “who is my neighbour…..persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omission in questions.

- The neighbor principle explains how we should apply reasonable care not to injure or hurt anyone, who comes into direct relationship with us or with whom we are involved with.

 -  The concept of the neighbor relationship outlines the practical boundary in which we owe a duty of care.

            DONOGHUE v STEVENSON [1932] AC 562

A friend of the plaintiff had purchased for her a bottle of ginger beer at a café. The plaintiff had consumed some of the drinks but when she poured out the remainder of the contents of the bottle, a decomposed snail came out of it. As the bottle was opaque, the plaintiff was unable to see its contents much earlier. The plaintiff suffered shock and subsequently became ill. She sued the defendant manufacturers in negligence. She could not commence her action in contract because there was no privity of contract between the parties.

The House of Lords held that the defendants, being manufacturers of ginger beer, owed duty of care to the plaintiff, as the ultimate consumer or purchaser of the drink. This duty was to take reasonable care to ensure that the bottle did not contain any substance which was likely to cause injury to anyone who purchases it in due course.

·         Must established ‘foreseeability’-

PALSGRAF v LONG ISLAND [1928] 162 N.E 99

Two train guards, whilst assisting a passenger, had negligently knocked down a  parcel from his arms which, despite its innocent appearance, in fact contained fireworks. An explosion occurred when the parcel fell beneath a moving train, causing scales some distance away to topple on the Plaintiff. Although negligence was proven, the jury nevertheless held that the plaintiff could not recover because to the injury to the plaintiff was not foreseeable. According to jury, the plaintiff was “beyond the range of foreseeable peril”.