Negligence Claims

The law of negligence in the common law is one aspect of the broader law of liability. There are multiple facets of negligence as well as the progression of the common law over the last 100 years. Breaking down the different areas in which negligence claims can be prosecuted is a good way to get a basic understanding of negligence and how it is interpreted under the law.

To begin, a general definition of negligence is to act in a way that is in discord with what a reasonable person would do in a similar situation. It is important to note that in a negligence claim the defendant is accused of carelessness, not an intent to harm. A commonly sited statement is that the principal idea behind negligence is that a person should take reasonable care to consider the potential and foreseeable harm their actions may cause other people. Failure to consider this harm is to neglect or fail to act in a reasonable manner.

Negligence is often divided up and considered in stages. In order to successfully prosecute a negligence suit, all stages must be proven. Depending on the common law jurisdiction, negligence is classified in to either 3, 4, or 5 stages. In the case of the three, they would be: conduct, causation, and pecuniary damages. In the case of 4: duty, breach, causation and pecuniary damages. In the case of 5: duty, breach, actual cause, proximate cause, and damages.

Duty of Care

The history of the duty of care principal begins with a slug in Great Britain. In short, a certain Ms. Donoghue drank a ginger beer that was purchased for her by a friend. In the ginger beer, she found a decomposed slug. She then sued the supplier, a man named Stevenson in Scotland. She could not bring a direct action against the manufacturer, Andrew Smith because there was not contract, as her friend had purchased the product.

Justice Lord MacMillan created a new category of tort based on what is currently called the “implied warranty of fitness of a product”. His ruling stated that people should “love thy neighbour” or rather “not harm thy neighbour”. In his definition of “neighbour” the foundation for the current core principals of negligence are easily noted. A neighbour consists of “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omissions that are called in question.”

As time has progressed, three considerations have become standard in determining liability under duty of care. Harm must be reasonably foreseeable, there must be a relationship of proximity between the plaintiff and defendant and it must be “fair, just and reasonable” to impose liability.

When duty is established, one then needs to prove that the duty was breached. This could be either that the defendant knowingly put others in harm’s way by way of their actions or they neglected to realize the potential danger in a situation wherein a reasonable person would have done so.