Theories of Negligence: Understanding Legal Concepts

When it comes to negligence, two main theories shed light on its meaning and implications. As a content writer and SEO expert, let’s delve into these theories while optimizing for readability and search engine visibility.

Subjective Theory of Negligence

The subjective theory centers on an individual’s state of mind. Proposed by Salmon and supported by legal scholars like Wharton, Street, and Winfield, it emphasizes a person’s mental awareness. Here’s the essence:

• Negligence Defined: Negligence, according to this theory, arises when someone is indifferent or fails to pay attention to the potential harm caused by their actions. It’s not intentional harm but rather a lack of consideration for risks.

Objective Theory of Negligence

The objective theory, championed by Frederick Pollock, takes a different approach. It focuses on actions rather than thoughts:

• Negligence Defined: In this theory, negligence isn’t about inner thoughts; it’s about whether a person’s actions meet the standard of a reasonable, prudent individual in a given situation. Regardless of intent, the key question is whether their behavior aligns with what an average person would do.

Defining Negligence: Elements and Legal Insights

Now, let’s explore the core elements of negligence:

1. Duty: The defendant must have an obligation to act carefully toward the plaintiff. For instance, a driver owes a duty to drive safely and avoid harming others.
2. Breach: If the defendant fails to meet the standard of care owed (e.g., running a red light), they breach their duty.
3. Causation: The defendant’s actions directly cause harm. For example, running the red light leads to a collision.
4. Harm: The plaintiff suffers injury or loss due to the defendant’s actions (e.g., injuries from the crash).

Winning a Negligence Case:

To succeed in a negligence case, the plaintiff must prove all four elements. If any element remains unproven, the case won’t prevail.

Remember, negligence law serves as a vehicle for communities to reexamine and communicate their values. It toggles between local morality norms and national efficiency, depending on the scope of the dispute. By understanding these theories, we can navigate negligence cases effectively and constructively.

LEGAL DUTY OF CARE

• Duty of care means a person or company has a responsibility under the law to act carefully and not cause harm to others.
  • For example, drivers have a duty of care when driving to be careful and not hurt people like other drivers or pedestrians through careless actions.
• This means that just because someone did not help prevent an injury, it does not automatically mean they were legally negligent.
• Normally under the law, failing to rescue or save someone like someone drowning does not by itself make someone negligent. There needs to be a pre-existing duty to help first.
• In one court case, a man bought wool underwear from a store. After wearing it, he got a skin disease.
  • Testing found the wool had too much chemical in it called sulfates that were not removed during washing like they should have been.
  • This was because of negligence in the washing process by the manufacturers before selling the underwear.
  • The manufacturers were held fully responsible legally because they failed to properly do their duty to carefully wash out chemicals that could harm people wearing the wool items.
• There are some legal tests courts use to decide if a duty of care existed in a situation. Things like if it was reasonably foreseeable harm could occur, if the victim was close to the alleged negligent actions, and if the situation shows enough links between the negligence and later harm.

Tests to prove duty of care

1. Neighbor test

• The Neighbour Principle is a test used to determine if a duty of care exists. It looks at whether one person should have foreseen that their actions could injure or damage another person or their property.
• Under the Neighbour Principle, a reasonable person in the same situation as the defendant (D) should ask – would I foresee that what I am doing could negatively affect the plaintiff (P)?
• The Neighbour Principle was used in the landmark case of Donoghue v Stevenson in 1932. A woman drank ginger beer with a decomposed snail in it. She sued the manufacturer for negligence.
• Lord Atkin, who decided the case, used the Neighbour Principle to find that the manufacturer had a duty of care towards the customer. They should have foreseen she could be harmed by unsafe drink.
• The Neighbour Principle says the duty of care we have extends to our “neighbours”. Lord Atkin said “neighbours” means people who are directly affected by our actions in a way we should reasonably foresee.
• For example, a restaurant owner has a duty of care towards customers to keep the kitchen clean. They can foresee dirty kitchens could harm customers by making them sick. So customers are their “neighbours” in this context.
• In summary, the Neighbour Principle looks at whether injury to another was reasonably foreseeable to determine if a duty of care exists between two parties. It expands legal liability to people directly affected by our actions.

EXCEPTION TO THE NEIGHBOUR TEST OF LORD ATKIN

• The Neighbour test may not apply in some situations:
  1. Lawful exercise of legal rights: If a person lawfully exercises their legal rights in a normal way, they cannot be held liable just because injury to someone else was foreseeable. For example, if a shop lowers its prices to compete, it’s not liable for losses to other shops. Or building something allowed on your own land that harms others.
  2. Omissions instead of positive acts: Generally, there is no legal duty to actively do something for the benefit of others. For example:
     • Not giving food to someone starving and watching them die – no liability
     • Not saving a drowning person you could rescue – no liability
     The law does not require positive acts of assistance. Failing to help is different from causing direct harm through actions.
  3. Statutory duties: If a duty is created by a law/statute, the details of that duty and any liability for breaching it will be defined in the statute, not the Neighbour test. The defendant will only be liable as per the statute.
  4. Negligent misrepresentations:
     • In a past court case called Headley Bryne & Co, v. Heller and Partners Ltd, the highest court said that only causing financial harm to someone due to providing wrong information is not enough on its own to make someone legally responsible.
     • There needs to be a “special relationship” between the parties, like a contract, for responsibility to apply in these types of cases.
     • This applies only to cases about negligently providing wrong information that causes monetary loss.
  5. Animals straying on highways: If domestic animals that aren’t known to be dangerous wander onto a road, their owner isn’t responsible to stop it and isn’t liable for any losses unless the animals cause harm.
  6. Special privileges and immunities: The test doesn’t apply where a person has special legal protections, e.g. government servants carrying out official duties. Their liability is judged separately.

1. REVISED TEST/TWO STAGES TEST This test is used to determine if there is a duty of care in a negligence case. Lord Wilberforce came up with this two stage test. Stage 1: Relationship between the parties In this first stage, we look at the relationship between the person who caused the damage (defendant) and the person who suffered damage (claimant). We see if they had a close enough relationship such that the defendant should have reasonably thought that his actions could cause damage to the claimant. If they had such a close relationship, then a basic duty of care exists between them by default. We don’t need to check past cases. Stage 2: Are there any reasons to limit the duty of care? If stage 1 is satisfied, then we move to stage 2. Here we look if there are any reasons why we should limit the scope of the duty of care. There are some common reasons why we may want to restrict the duty:
   • It’s too difficult or expensive to protect everyone. If the group is very large, like the whole population, it may not be possible to take care of them all.The harm suffered was unexpected or not obvious. We can only reasonably try to prevent foreseeable harms, not things we couldn’t predict.
   So in summary, stage 1 looks at the relationship between the parties. Stage 2 then looks if there are any factors that say we should limit or reduce the extent of the duty of care in this case. This two stage test helps decide if a duty of care exists in a flexible way without relying only on past cases.
2. CURRENT TEST / THE THREE -STAGES TEST The current test used to determine if a duty of care exists is based on a decision made by the House of Lords in a case called Caparo Industries PLC v Dickman in 1990. This test consists of three questions that the court asks in order to make a decision:
   1. Reasonable foreseeability: The court needs to determine if it was reasonable to expect that the defendant could have anticipated the risk of causing harm or injury to the person making the claim. They consider whether a reasonable person in the defendant’s position would have been able to foresee the potential damage. For example, in the case of Langley v. Dray in 1998, a police officer was injured in a car crash while chasing a person driving a stolen car. The court held that the defendant should have known that the officer was pursuing him, and by increasing his speed, the defendant created a risk of injury. The defendant had a duty not to create such risks, and by doing so, he breached that duty. In order for a duty of care to exist, it must have been reasonably foreseeable that the defendant’s actions could cause harm.Proximity: In everyday language, proximity means closeness in terms of physical distance. However, in legal terms, it has a broader meaning that focuses on the relationship between the defendant and the person making the claim. In the case of Muirhead v Industrial Tank Specialities in 1985, the court held that proximity does not require the defendant and the claimant to know each other personally. Instead, it means that the circumstances in which they find themselves make it reasonable to expect that the defendant’s actions could cause harm to the claimant. Proximity is about the connection between the parties involved.Justice and reasonableness: Sometimes, even if the damage was foreseeable and there is a sufficient degree of proximity between the claimant and the defendant, the court may decide not to impose a duty of care based on public policy grounds. This means that the court considers whether it would be fair, just, and reasonable to hold the defendant responsible for the harm caused. For example, if a bank robber is injured due to the negligent driving of their accomplice while escaping from a crime scene, it may be foreseeable that the injury could occur and there may be a relationship of proximity between the parties. However, the court may decide not to impose liability because it would go against public policy. In this case, it would not be fair or reasonable to hold the negligent driver responsible for the injuries caused to the bank robber.
   The Caparo test, consisting of these three stages, is now widely accepted as the standard test used by courts to determine if a duty of care exists in new situations. It helps the court analyze whether the defendant should be held liable for the harm or injury caused. WHO IS A REASONABLE MAN A reasonable man is a legal concept used in negligence laws. It refers to an imaginary person whose actions and behavior are used as a benchmark or standard to determine if someone was negligent or not in a particular situation. Some key points about a reasonable man:
   • He is not a real person but an ideal figure created by law. His behavior represents how an ordinary, careful person would act in the same circumstances.
   • While each person is unique, the law does not consider individual differences like intelligence or skills. Everyone is judged based on the reasonable man standard, not their actual abilities.
   • The reasonable man takes reasonable care to avoid causing harm to others. He thinks about possible risks and acts carefully to prevent accidents or injuries.
   • In a negligence case, a jury decides if the defendant’s actions matched what a reasonable man would do in that situation. They look at what the defendant knew at the time.
   • It is not a defense to say “I am new/inexperienced” if a reasonable person with average skills could have avoided the accident. For example, a new driver causing a crash cannot say they are new, as a normal driver would not crash.
   • The standard is the same for everyone – a reasonable person with ordinary skills and experience. Their actual intelligence or training does not matter, only how a normal careful person would act is considered.

HIGHER STANDARD OF DUTY FOR CERTAIN PROFESSIONALS

Certain professionals like doctors, lawyers and engineers have a higher standard of duty in the courts. This means the law expects them to show a high level of skill and care in their work.

When these professionals are involved in a case related to using their professional skills, the court will compare their actions to what an average member of their profession would do in that situation.

If the professional does not show the level of skill and care expected from the average member of their field, and someone gets hurt because of it, the court will likely find them negligent. Negligent means not being careful enough.

In one case, a rugby player got injured during a game because of a decision made by the referee. The referee was being sued.

The court said the level of care expected from the referee depends on what level or type of match he was refereeing. A less skilled referee would be expected if they were just volunteering to help as an amateur.

But if the referee was a professional who gets paid to referee, the court expects a higher level of skill similar to other professional referees.

In this case, the referee was a professional. So the court compared his actions to what a professional referee should do. They found he did not show the required level of skill and care. So he was found liable, which means legally responsible, for the player’s injuries.

This shows that professionals like referees have a duty to show the standard of skill expected of their profession in court. Failing to do so can result in being found negligent.

MEDICAL NEGLIGENCE

• When a doctor treats a patient badly and hurts them, it is called medical negligence.
• To decide if there was negligence, the doctor is compared to other good doctors with the same special skills and experience level.
• A normal doctor is not judged the same as a top heart doctor.
• If the doctor’s work is below the standard of a good doctor with the same special skills, then they will be responsible.
• Since 1957, the Bolam test has been used to decide professional negligence cases.
• The test comes from a court case called Bolam v Friern Hospital.
• It says a doctor is not negligent if they follow a practice accepted by other skilled doctors in that area.
• In 1997, a court case called Bolitho changed the Bolam test a little.
• Now it’s not enough for other doctors to just follow the same practice.
• The practice must also make logical sense and be defendable.
• Three important court cases after approved the Bolam test as changed by Bolitho for deciding medical negligence:
  1. Maynard v West Midlands – About mistakes in diagnosis
  2. Whitehouse v Jordon – About mistakes in treatment
  3. Sidaway v Royal Hospital – About not sharing enough information

DUTY TO WHOM: DUTY MUST BE TOWARDS THE PLAINTIFF

Duty means responsibility or obligation. In negligence law, duty of care refers to the responsibility one person has to act carefully to avoid harming others.

For a plaintiff (the person claiming negligence) to win a negligence case, they must prove that the defendant owed them a duty of care. This means the defendant had a responsibility to act carefully towards the plaintiff and protect them from harm.

The duty is always owed from the defendant to the plaintiff specifically. It is not enough for the defendant to have a general duty of care towards others. They must have a duty towards the exact person claiming negligence.

In the student hall example, the security guard has a duty of care towards the students living in that hall. His job is to keep those specific students safe. So if his negligence harms a student, that student can claim he breached his duty owed to them.

In the electricity board case, the board has a duty to inspect poles and wires regularly to ensure no parts are electrified. If an animal comes into contact and dies due to the board’s failure to inspect properly, they breached their duty owed to the owner of that animal. [Rajasthan Electricity Board vs. Shiv Charan Lal AIR, (1986)]

So in summary – for negligence, the duty must be from the defendant to the exact plaintiff claiming they were harmed. The defendant needs to have a responsibility to act carefully regarding that specific plaintiff for there to be a duty of care.

BREACH OF DUTY OF CARE/ (STANDARD OF CARE)

Duty of care means that everyone has a responsibility to act carefully and not cause harm to others. When someone owes a duty of care to another person, they must meet a certain standard (level) of care.

The standard of care is what a reasonably careful person would do in that situation. It depends on things like the potential risks, the person’s skills and experience, and common sense.

For example, if driving a car, the standard of care is to follow all traffic rules, check mirrors and blind spots before turning, and drive at a safe speed for the road conditions.

A breach of the duty of care happens when someone fails to meet the standard of care they owe in that situation. They do something a reasonably careful person would not do, or they fail to do something a reasonably careful person would do.

To determine if there was a breach, courts ask what a reasonable person would have done. A reasonable person is just an ordinary, sensible person – not perfect but also not careless.

Some key points:

• Everyone has a general duty to act carefully and not cause harm to others.
• The standard of care depends on things like risks, skills, experience and common sense for that situation.
• A breach happens if someone’s actions fall below what a reasonably careful person would have done in the same situation.
• Courts use the reasonable person test to judge if there was a breach of the duty of care.

Causation

Causation means proving that the defendant’s actions actually caused the injury to the plaintiff. There are two parts to causation:

1. Cause in fact (also called ‘but for’ test): This means showing that ‘but for’ or without the defendant’s actions, the injury would not have occurred. Example: A child gets hurt after someone negligently throws a bag of grain onto a truck. To prove cause in fact, the child would need to show that if the person had not thrown the bag, the injury would not have happened.
2. Proximate cause: Even if the defendant’s actions were a cause in fact, their actions will only be considered the ‘proximate cause’ if the injury was a reasonably foreseeable result of the actions. Example: In a case where a man died from a treatable illness after a hospital negligently failed to examine and treat him on time. Even though the hospital was a cause in fact, because it was very unlikely the treatment would have saved him anyway, their actions were not the proximate cause of his death under the law.

In summary:

• Causation means proving the defendant’s actions actually caused the injury.
• Under the ‘but for’ test, the plaintiff must show the injury would not have occurred without the defendant’s actions.
• Proximate cause looks at whether the injury was a reasonably foreseeable result of the defendant’s actions.

Proximate cause

Proximate cause is about determining who is responsible when someone gets hurt or their property gets damaged due to another person’s actions.

When someone sues another person for negligence, they have to prove four things:

1. The defendant owed them a duty of care. This means the defendant had a responsibility to act carefully.
2. The defendant breached their duty of care. This means they did not act carefully and their actions were not adequate.
3. The breach of duty caused the plaintiff’s injury or damage.
4. The injury or damage was a foreseeable consequence of the breach of duty. This is called proximate cause.

Proximate cause is important because the defendant should only be responsible for harms that were reasonably expected to happen due to their careless actions.

If the injury happened in a way that the defendant could not have predicted, even though their actions were careless, they are usually not responsible legally.

For example, if a driver crashes into a pole and the pole then falls on a nearby house a week later, collapsing it, the house damage is probably not something the driver could have foreseen. So the driver would not be responsible to pay for fixing the house.

In the example of the bag of grain hitting the child, the defendant was transporting heavy bags in a way that could hit people. So injurying a child that way is something that could have reasonably been predicted as a consequence. This makes the action the proximate cause of the child’s injury.

The key thing to understand is proximate cause limits responsibility to foreseeable harms from careless actions, not anything accidentally connected to them.

BURDEN OF PROOF

In an action for negligence it is for the plaintiff to establish the following things:

a) the defendant owed him a duty of legal care;

b) there was breach of that duty;

c) as a consequence of the breach of duty, he suffered damage.

If he fails to prove any of the three elements he is bound to fail. The burden can

be discharged by showing preponderance of probabilities.

DOCTRINE OF RES ISPA LOQUITUR (THE THING SPEAKS FOR ITSELF)

• Res ispa loquitur means “the thing speaks for itself”.
• In a negligence case, the plaintiff normally has to prove three things:
  1. The defendant owed a duty of care to the plaintiff
  2. The defendant breached that duty of care
  3. The breach caused damage or injury to the plaintiff
• This means the plaintiff must show evidence that the defendant was negligent and this negligence caused the plaintiff’s injury.
• However, in some situations something called “res ispa loquitur” applies.
• For res ispa loquitur to apply, the accident or injury must have happened in a way that normally doesn’t happen without someone being negligent.
• If res ispa loquitur applies, the plaintiff does not have to directly prove the defendant was negligent.
• This means that if the accident or injury happened while the thing that caused it was under the defendant’s control, the plaintiff does not have to prove that the defendant was negligent.
• All the plaintiff needs to show is that the accident happened while the object was under the defendant’s control.
• According to a judge named Lord Shaw, sometimes the thing that caused the accident can tell its own story about what happened.
  • He said that if the accident is something that normally would not happen without negligence, then it can be assumed the defendant was negligent.
• This creates an “inference” of negligence against the defendant. But the defendant can still argue they were not negligent.
• For example, if something falls from a building and hits someone, res ispa loquitur may apply because things don’t normally fall from buildings without someone being careless.
• But the building owner could still argue they were not negligent and provide reasons why the accident wasn’t their fault.
• So in summary, res ispa loquitur means the accident itself can be used as evidence of negligence in certain situations, making it easier for the plaintiff to prove their case.

DEFENSE/EXCEPTION TO AN ACTION FOR NEGLIGENCE

Assumption of risk

If the plaintiff willingly took part in a dangerous activity created by the defendant, the defendant may use assumption of risk as a defense.

For example, if someone decides to go bungee jumping, they are assuming the risk of getting hurt during the jump.

However, the plaintiff only assumes risks they know about. They cannot assume unknown risks caused by the defendant’s negligence. Also, assumption of risk cannot be used as a defense if the defendant was the one who originally created the dangerous situation through their own negligence.

Contributory negligence

Contributory negligence is when the accident happened not just because of the defendant’s negligence, but also because the plaintiff was negligent too. Negligence by the plaintiff that also contributed to the accident is called contributory negligence.

For example, if someone got injured crossing a street carelessly, even though a driver was speeding, the driver could use contributory negligence as a defense.

However, the defense fails if the plaintiff was not negligent and acted with reasonable care for their own safety.

In summary, assumption of risk and contributory negligence allow the defendant to argue that the plaintiff shares some responsibility for the accident, which makes the defendant not fully liable. But these defenses have certain restrictions.