LEGAL FRAMEWORK
Law of Negligence: Duty of Care, Standard of Care and Sufficient Connection in Law
A tort is a civil wrong that takes place in the form of a breach of duty and the legal remedies that are available in such a case are in the form of damages. At the same time, tort also needs to be separated from a breach of contract as the law of tort is considerably separate from the law of contract(Bermingham and Brennan, 2008).
Negligence is treated as a part of the civil law that is known as the law of Tort. In this way, negligence is a tort. Although negligence is a tort but it is also considered as the most important tort.
The meaning of negligence is to do something which any other person would not have done or the failure to do something that any of the reasonable person would not have failed to do and when such act or omission has caused harm inadvertently.
In this way means that it is not the obligation of the plaintiff to establish that the act or omission and its consequences were intended by the defendant. However at this point, it is important to note that something more than careless conduct is related with negligence.
In this way, negligence can be said to be a combination of the concepts of duty, its breach and sufficient connection (Harpwood, 2000).
- Duty of Care: Lord Atkins stated in Donoghue v Stevenson that “the rule that we should love our neighbor takes another form under the law and requires that we should not injure our neighbor”. As a result, reasonable care needs to be taken so that the acts or omissions can be avoided that can be reasonably considered as causing injury to the neighbor(Cook v Cook1986).In this way, the answer to the question as to who is the neighbor in such a case appears to be that the persons who are so closely and directly affected by the act that they should be in reasonable contemplation of the person as being affected by such act or omission when the person directs his mind to such act or omission(Oughton, Marstonand Harvey, 2007).
3.2 Recognized Duties of Care: the law provides that the duty of care is “an obligation recognized by the law and it also requires that the conduct which involves unreasonable risk be avoided”.
Therefore although no precise formula has been provided for establishing when one party owes a duty of care towards the other, there are two important factors that have been pointed out by the court in Donoghue v Stevenson that give rise to the duty of care.
These two factors are reasonable foreseeability and the proximity that exists between the parties. Therefore if a wrongdoer is aware of the fact or if such wrongdoer should have been aware of the fact that his act or omission may cause injury or impairment of the legal rights of others, who may not be in a position to protect them, and similarly there is a relationship of legal proximity, it results in giving rise to the duty of care (Woodley, 2005).
At this point, it needs to be noted that duty of care is a matter of law and therefore on the grounds of public policy, it may be denied by the courts. For example, the courts may deny the duty of care if in the opinion of the Court; it will not be fair or just to impose such duty.
In the same way, the duty of care has been recently refined by the High Court, particularly in the cases where pure economic loss was involved (Oughton, Marston and Harvey, 2007).
3.3 Neighborhood Factors: In Donoghue v Stevenson [1932] the court established the neighbor principle which is still considered as the foundation for the development of the law related negligence.
The House of Lords considered it necessary in this case to deal with the problems created by privity of contract with a view to provide an alternative route to an injured party to claim damages.
In this way, the House of Lords solves this problem when it imposed liability for negligence and stated that it is possible to do so when duty of care is present between the parties (Woodley, 2005).
Therefore the neighbor principle allows the innocent party who claims negligence, by identifying the class of persons to whom a duty of care in his owed under certain circumstances.
This class of person includes those who were close enough so that they are directly impacted by the negligent act or omission and similarly they were so close that they should have been within the contamination of the wrongdoer while considering the act.
Similarly, it is also true that this principle has not resulted in opening the floodgates for unlimited claims due to the reason that this principle provides that a wrongdoer will not be considered as owing a duty of care towards the persons who cannot be considered as close enough so that they should be in contemplation of the person while engaging in tortious act or omission.
However, the neighbor principle is still considered as the guiding principle in cases involving negligence (Katter, 2004).
- Standard of Care: a person can be considered as negligent if the person has acted or failed to act in a way resulting in causing an injury to the other person. In this regard it needs to be acknowledged that accidents do happen and no person is perfect. However the thing that separates a common act from negligence is the “standard of care” required in specific cases. As a result by neglecting the required standard of care in a specific case, a person can be liable for the injuries that were the result of such negligence. An example can be given in this regard who is driving a vehicle and therefore is required to exercise the same care that would be used by other reasonable persons under same circumstances which may include obeying traffic laws and paying attention to pedestrians and other drivers. But a severely nearsighted driver, who was not wearing his glasses and therefore hits a pedestrian, can be considered as negligent because any other reasonable but severely nearsighted driver would be wearing his glasses at the time of driving (Harpwood, 2000).
4.1 Reasonable Person Standard: according to the law of negligence, the reasonable person is the creation of legal fiction. Therefore, the reasonable person is the ideal person who focuses on how a typical person, who has ordinary prudence, would have acted in a particular case.
The test used in such a case with a view to see if the person has acted as any of the reasonable person is an objective test and as a result it is not considered the particular abilities of the defendant (Cooke, 2009).
Therefore even if a person having low intelligence or a person who is careless regularly, may also be held by the court by the same standard as any other person with ordinary intelligence or a person who is generally careful.
It is also being seen generally that the jewelry decides if the defendant has acted in a way in which any of the reasonable person would have acted in same situation (Perre v Apand Pty Ltd, 1999).
Deciding this question, the jury generally considers the conduct of the defendant keeping in mind the fact but was actually known by the defendant, his experience or what was perceived by him.
4.2 Breach of Standard – Guidelines: once it has been decided by the court that a person owes a duty of care, the next question that has to be decided in such a case is to see how much care has to be exercised. It also is to be considered if the defendant has taken reasonable care.
For this purpose, it is considered independent has acted in the way in which any other reasonable person would have acted under similar circumstances (Cook v Cook, 1986).
There are several guidelines that have been provided by the court regard that may help in deciding if the standard of care has been breached in a particular case or not.
These guidelines include:-
4.2.1 Probability of Harm: this guideline provides that greater the chances of him, the more are the need for care that has to be exercised. In this way, it means that the higher the chance of harmful injury or loss, the higher is the standard of care that would be followed by any other reasonable person in such a case (Harpwood, 2000).
4.2.2 Seriousness of Possible Injury: this guideline provides that more serious is the probable result of the injury, the higher is the degree of care that has to be shown in such a case.
As a result, the higher the chances of a serious injury in a particular case, the higher is the standard of care that has to be exercised by Annie other reasonable person and in the same way, the chances of breach are also in case reasonable care is not exercised (McDonald, 2005).
4.2.3 Costs and Difficulties Involved in Reducing on Avoiding the Risk: this guideline provides that when the cost and the difficulty involved in avoiding the risk is more but on the other hand, the actual risk of harm is low, the chances of a breach of duty are also low but at the same time, the opposite of this is also true.
As a result, if the cost and difficulty involved in avoiding the risk is small but the actual risk is significant, the greater are the chances that a breach may take place.
5.0 Sufficient Connection in Law
5.1 Causation: causation is the unintended relationship that is present between the conduct of the defendant and the result of such conduct. In the same can be said that causation provides the means with the help of which, conduct can be related with effect.
However, causation in itself cannot be treated as enough for creating legal liability. In some cases, it is only a part of a multistage test that is used for deciding liability (Gardiner and McGlone, 1998).
5.1.1 But for test: this test is generally used for the purpose of deciding the liability in cases involving negligence. According to this test, it is seen if but for the act of the defendant, the harm would have taken place or not.
It is a test of necessity and according to this test, it is asked if it was necessary that the act should have occurred so that harm to the plaintiff may have taken place(Smith, 2007).
5.1.2 Common-sense test: at this point it needs to be noted that the but for test has some weaknesses. For example this test has not proved successful in cases where multiple causes are involved and similarly in cases where there was an intervening act also present.
As a result in such cases, a value judgment of common sense has replaced the but for test. In the same way, and act cannot be treated as an intervening act if the same has also been the result of the negligence of the original tortfeasor (Kidner, 2008).
5.1.3 Novus actusinterveniens: A novusactusinterveniens or an intervening act is an act which breaks the chain of causation and it entails that the original tortfeasor cannot be held liable for the damages that have been suffered by the plaintiff anymore.
However, it has been seen that generally it is not easy to establish that and it can be considered as an intervening act but it can be considered as an intervening act if the same is a voluntary human act and it is also free and informed act. This means that the act has not been influenced by or is the result of the negligence of the original tortfeasor (Harpwood, 2000).
5.2 Remoteness: remoteness of damages concerns the requirement that the damage that has been suffered by the claimant should have been of a foreseeable nature.
Therefore in cases of claims for negligence, then it has been established that the defendant owes a duty of care and the duty has been breached, which has resulted in damage to the claimant, it also needs to be established that the damage that was suffered by the plaintiff was not too remote (Katter, 2004).
5.2.1 Test of Reasonable Foreseeability: generally, the remoteness of damages is treated as an additional mechanism that is used for controlling tortious liability.
The result is that not every loss is recoverable under tort. As a result of the decision that was given by the court in The Wagon Mound no 1 [1961], test used for deciding remoteness of damages is that the damage should be of a foreseeable nature.
Therefore when it is established that the damage was of a foreseeable nature, the defendant is liable to the full extent irrespective of the extent of such damage (Harriton v Stephens, 2006).
5.2.2 Egg Shell Skull Rule as a qualification to remoteness: this rule is considered as a final aspect of the remoteness of damages.
This rule provides that the defendant has to take the victim as they have found them. According to this rule, in case the victim has a particular vulnerability or if the victim has a pre-existing condition and as a result of such pre-existing condition, the victim has suffered greater injury as may be expected from any ordinary person, the defendant is liable to the full extent of the injury in such a case (Cooke, 2009).
- Conclusion: Therefore, in the present assignment the law of negligence and the major concepts involved in negligence has been discussed briefly including the duty of care and the beach of the standard of care. At the same time, the principles and the relevant rules, guidelines and tests for establishing negligence have also been discussed in this assignment along with the relevant cases and quotations.
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