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| Tort law |
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| Part of the common law series |
| Intentional torts |
| Assault · Battery · False imprisonment |
| Intentional infliction of emotional distress (IIED) |
| Consent · Necessity · Self defense |
| Property torts |
| Trespass · Conversion |
| Detinue · Replevin · Trover |
| Dignitary torts |
| Defamation · Invasion of privacy |
| Breach of confidence · Abuse of process |
| Malicious prosecution |
| Alienation of affections |
| Economic torts |
| Fraud · Tortious interference |
| Conspiracy · Restraint of trade |
| Nuisance |
| Public nuisance · Rylands v. Fletcher |
| Negligence |
| Duty of care · Standard of care |
| Proximate cause · Res ipsa loquitur |
| Calculus of negligence |
| Rescue doctrine · Duty to rescue |
| Specific kinds of negligence |
| Negligent infliction of emotional distress (NIED) |
| In employment · Entrustment |
| Malpractice |
| Duty to visitors |
| Trespassers · Licensees · Invitees |
| Attractive nuisance |
| Strict liability torts |
| Product liability · Ultrahazardous activity |
| Liability, defences, remedies |
| Comparative and contributory negligence |
| Last clear chance · Eggshell skull |
| Vicarious liability · Volenti non fit injuria |
| Ex turpi causa non oritur actio |
| Damages · Injunction |
| Common law |
| Contract law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
Negligence is a legal concept usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or delict and a civil wrong, but it can also be used in criminal law. Negligence means conduct that is culpable because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status, or relationships. Negligence is used in comparison to acts or omissions which are intentional or willful. The law of negligence at common law is one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of this discussion.
Contents |
In appellate court decisions, negligence suits have historically been analyzed in distinct stages. First, the defendant must have had a duty of care towards the claimant. The courts have long established that all persons have a duty to use that degree of care that an ordinarily prudent person would have used under the circumstances, so that, at trial, the existence of the "duty" is predetermined. However, the constitutional right to jury trial on fact questions has established overwhelmingly, at least in the US, that the determination of whether the behavior of a particular defendant in any given case constitutes negligence is ordinarily a unique question of fact for jury determination. http://lawreview.kentlaw.edu/articles/77-2/Kelley%20FINAL3.pdf Proving negligence does not, alone, support an award of damages. Second, obviously from the definition above, the claimant must show that the defendant has breached that duty by not exercising reasonable care. The plaintiff must further show that the defendant\'s negligence contributed to cause harm to the claimant. Fourth, the harm must not be too remote a consequence of the negligence; that is, the negligence must be a "proximate cause" of the harm. Finally the claimant must be able to establish what kind of damages, or compensation, he should get for his or her harm. "The broad agreement on the conceptual model," writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."Deakin, Tort Law, 218
A decomposed snail in Scotland was the humble beginning of the modern English law of negligence
The case of Donoghue v. StevensonDonoghue v. Stevenson [1932] AC 532 [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. Plaintiff Ms. Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Mr. Stevenson of Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed snail. She then sued Mr. Stevenson, though there was no relationship of contract, as the friend had made the payment and so no contractual legal action was possible. Nor was there a contract or "privity" with the manufacturer, Mr David Stevenson. In his ruling, justice Lord MacMillan presiding over the case defined a new category of tort, (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to \'love thy neighbour,\' as the legal requirement to \'not harm thy neighbour.\' He then went on to define neighbour as "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 or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence. In England the more recent case of Caparo v. Dickman [1990] introduced a \'threefold test\' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be \'fair, just and reasonable\' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.
In Bolton v. Stone the English court was sympathetic to cricket players
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty.
Breach of duty is not restricted to professionals or persons under written or oral contract; we all have a duty to take reasonable care for others and their property. Anyone who unreasonably runs a risk that results in harm to others or their property, breaches their duty of reasonable care. An example is the case of Bolton v. StoneBolton v. Stone, [1951] A.C. 850 which occurred in the English countryside, where cricket balls were seldom hit far enough to endanger to local passerbys, but one day one was. It hit Mrs. Bolton on the head, who was walking nearby. Although she was hurt, the court said she did not have a legitimate claim. \'Reasonable risk\' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of HealthRoe v Minister of Health (1954) 2 AER 131, the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.
For the rule in the U.S., see: Calculus of negligence
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one\'s breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.
Negligence can lead to this sort of accident - a train wreck at Gare Montparnasse in 1895.
Sometimes factual causation is distinguished from \'legal causation\' to avert the danger of defendants being exposed to, in the words of Cardozo J, "liability in an indeterminate amount for an indeterminate time to an indeterminate class." Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441 It is said a new question arises of how remote a consequence a person\'s harm is from another\'s negligence. We say that one\'s negligence is \'too remote\' (in England) or not a \'proximate cause\' (in the U.S.) of another\'s harm if one would \'never\' reasonably foresee it happening. Note that a \'proximate cause\' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the \'proximity test\' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?
For instance, in Palsgraf v. Long Island Rail Road Co.Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99 the judge decided that Mrs. Palsgraf being hit by some weighing scales was too bizarre to be anyone\'s fault. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor did not help very well. The man fell from the moving train. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. The shockwaves struck some weighing scales causing them to fall, unfortunately, on Mrs. Palsgraf who was standing next to them. Interestingly, Mrs. Palsgraf\'s physical injuries were minor and were almost certainly caused by the stampede of travelers on the platform rather than the concussion of the exploding fireworks. These details have not, however, stopped the case from becoming the source of extensive debate in American tort law.Because she was hurt, she sued the train company who employed the conductor for negligence. (She could have sued the man or the conductor himself, but they did not have as much money as the company, known as the "man of straw" principle.) The judge hearing the case ruled that she could not recover any money because the harm was too remote. The conductor did not have a duty of care towards Mrs. Palsgraf and could therefore not be held legally responsible for her injuries.
Remoteness takes another form, seen in the Wagon Mound No. 2Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966] 2 All E.R. 709. The Wagon Mound was a ship in Sydney harbour. The Wagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The UK House of Lords determined that the wharf owner \'intervened\' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner. In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey.Jaensch v. Coffee (1984) 155 CLR 578 The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.
Even though there is breach of duty, the negligence suits will not be successful unless there is provable injury. The plaintiff/claimant must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. The damage may be physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case), or in relationships where a family may have lost a wage earner through a negligent act. In English law, at least, the right to claim for purely economic loss is limited to a number of \'special\' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.
Emotional distress has been recognized as compensable in the case of negligence. The state courts of California allowed recovery for emotional distress alone — even in the absence of any physical injury. See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
Damages place a monetary value on the harm done, following the principle of restitutio in integrum (the Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. But, particularly in the U.S., punitive or exemplary damages may be awarded in addition to compensatory damages to reflect the egregious nature of the defendant\'s conduct, e.g. that the defendant was malicious or callously indifferent.
Damages are, in general, compensatory and not punitive in nature. This means that the amount paid matches the plaintiff/claimant\'s actual loss (in cases involving physical injury, the amount awarded should aim to compensate for the pain and suffering). It is not the court\'s intention to punish the defendant. The award should be sufficient so as to put the plaintiff/claimant back in the position he or she was before the tort was committed and no more, because otherwise the plaintiff/claimant would actually profit from the tort. The award of damages may include the following heads of damage:
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