Monday, 16 April 2012

N is for Negligence

Negligence is an area of Tort law. There are many different types of negligence, including medical negligence, economic loss, psychiatric illness etc. It is generally a failure to exercise the level of care which a reasonable person might exercise in the same/similar circumstances. This area is concerned with harm caused by carelessness, not intentional harm.

Before 1932 there was no Duty of Care in negligence. The case of Donoghue v Stevenson (a friend of a purchaser who had been bought a drink found a decomposed snail in her ginger beer, and sued Stevenson).

To prove a negligence claim, it must be proved that:

  • There was a duty of care
  • The duty was breached
  • The defendant's (B's) conduct caused the harm suffered (Causation)
The more recent case, Caparo v Dickman introduced a 3 part test to establish whether a Duty of care existed.
Harm must be:
  1. Reasonably foreseeable
  2. a relationship of proximity between the plaintiff and defendant
  3. It must be fair, just and reasonable to impose liability.
To prove whether a breach of duty existed, the standard of the 'reasonable person' is used - this is objective and is just an ordinary person.

Interesting part below

Skilled defendants have a different standard. Therefore someone claiming to be a specialist/professional is that of a 'reasonable professional' - e.g. a doctor or car mechanic. Here is the horrible part - if you are a junior doctor, and have just started training, you are still held to this professional standard. No allowance is given for a lack of experience. (Wilsher v Essex Area Health Authority is the case establishing the standard in relation to doctors.)

The case of Nettleship v weston requires a novice driver to show the same standard of care as a reasonably confident driver. So, if you're a learner on your first few lessons or even possibly your first lesson and you cause a crash, you could be sued for failing to meet the required standard of a 'reasonable person', which I think is a bit harsh (but alas, it is the law!).

Back to the boring bits
There are other requirements that can be looked at, but i'm just going through this briefly and as such shall proceed onto causation.

To establish causation, first you test for factual causation, known as the 'but for' test.
But for D's conduct, would A have suffered the consequences? (in short).
It must not be too remote (unforeseeable).
Without my text book I cant go into too much detail (for fear of being wrong) so I shall leave it there :) Hope its not been too boring!

1 comment:

  1. I understand well what you have just written. My question to you is thus: What is the status of Tort reform? Is it being determined on a state by state basis?