|Part of the common law series|
|Liability and remedies|
|Duty to visitors|
|Other common law areas|
Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not (necessarily) intentional harm.
According to Jay M. Feinman of the Rutgers University School of Law:
"The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people."
Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence – when one person can sue another person in negligence – is not possible to define in general terms. It can depend on the kind of loss, the relationship between the plaintiff and the defendant, and other factors.
Elements of negligence claims
Some things must be established by anyone who wants to sue in negligence. These are what are called the "elements" of negligence.
Some say there are three elements – conduct, causation and damages. Most say there are four – duty, breach, causation, and damages – or five – duty, breach, actual cause, proximate cause, and damages. Each is correct depending on how much specificity is needed. "The broad agreement on the conceptual model", writes Professor David W. Robertson of the University of Texas at Austin, "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."
Duty of care
The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence the term used is duty of care
The case of Donoghue v. Stevenson  illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Pursuer, May Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer, a certain David Stevenson in Scotland. While drinking the drink, Donoghue discovered the remains of an allegedly decomposed snail in the bottle. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against Stevenson.
In his ruling, justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent 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 Industries Plc v. Dickman'  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 Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936). This was a landmark case in the development of negligence law in Australia.
Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002). Determining a duty for mental harm has now been subsumed into the Civil Liability Act 2002 in New South Wales. The application of Part 3 of the Civil Liability Act 2002 (NSW) was demonstrated in Wicks v SRA (NSW); Sheehan v SRA (NSW).
Breach of duty
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 [objective] in the same situation would clearly have realized, also breaches that duty.
However, whether the test is objective or subjective may depend upon the particular case involved. Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures. Doctors owe both objective and subjective duties to warn; and breach of either is sufficient to satisfy this element in a court of law. For example the Civil Liability Act in Queensland outlines a statutory test incorporating both objective and subjective elements. For example, an obstetrician who fails to warn a mother of complications arising from childbirth may be held to have breached their professional duty of care.
Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone, a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health, 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.
- United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)
For the rule in the U.S., see: Calculus of negligence
Factual causation (Direct Cause)
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, the accused party's breach of the duty owed to the injured party. In Australia, the High Court has held that the 'but for' test is not the exclusive test of causation because it cannot address a situation where there is more than one cause of damage. 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.
Legal causation or remoteness
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." 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. the judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. 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 mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.
The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.
Remoteness takes another form, seen in The Wagon Mound (No. 1). The Wagon Mound was a ship in Sydney harbour. The ship 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. The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle collision although she was not actually at the scene at the time of the collision. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. Here there was sufficient causal proximity. Also see the case of Kavanagh v Akhtar and Tame v. NSW.
Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss; it was reasonably foreseeable. It means something more than pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof. (See Constantine v Imperial Hotels Ltd  KB]).
Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.
The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.
The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury), or reputational (in a defamation case).
In English law, 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 an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.
A claimant who has suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.
The eggshell skull rule is a legal doctrine upheld in some tort law systems, which holds that a tortfeasor is liable for the full extent of damage caused, even where the extent of the damage is due to the unforeseen frailty of the claimant. The eggshell skull rule was recently maintained in Australia in the case of Kavanagh v Akhtar.
Damages place a monetary value on the harm done, following the principle of restitutio in integrum (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.
One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person". The test is self-explanatory: would a reasonable person (as determined by a judge or jury), under the given circumstances, have done what the defendant did to cause the injury in question; or, in other words, would a reasonable person, acting reasonably, have engaged in similar conduct when compared to the one whose actions caused the injury in question? Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.
Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.
There are also two other general principles relating to damages. Firstly, the award of damages should take place in the form of a single lump sum payment. Therefore, a defendant should not be required to make periodic payments (however some statutes give exceptions for this). Secondly, the Court is not concerned with how the plaintiff uses the award of damages. For example, if a plaintiff is awarded $100,000 for physical harm, the plaintiff is not required to spend this money on medical bills to restore them to their original position - they can spend this money any way they want.
- Types of damage
- Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car.
- General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.
- Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless).
Procedure in the United States
The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.
The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the "finder of fact" (jury) to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.
On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his case.
- Criminal negligence
- Gross negligence
- Medical negligence
- Mens rea
- Negligence in English Law
- "Negligence". Encyclopædia Britannica. Meriam Webster. Retrieved 12 June 2011.
- Feinman, Jay (2010). Law 101. New York: Oxford University Press. ISBN 978-0-19-539513-6.
- Deakin, Tort Law, 218
- Quill, Eoin (2014). Torts In Ireland. Dublin 12: Gill & Macmillan. p. 19.
- Donoghue v. Stevenson  AC 532
- 'Grant v Australian Knitting Mills LTD'  AC 85. See http://www.austlii.edu.au/au/cases/cth/HCA/1933/35.html
- See: http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf
- Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. See: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2002/35.html?stem=0&synonyms=0&query=title(Tame%20and%20New%20South%20Wales%20); see also Jaensch v Coffey (1984) 155 CLR 549 AustLII
- Civil Liability Act 2002 (NSW) s 32. See: http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s32.html
- Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60 AustLII; see also Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 AustLII
- Wyong Shire Council v Shirt  HCA 12; (1980) 146 CLR 40 (1 May 1980) AustLII
- Doubleday & v Kelly  NSWCA 151 AustLii; see also Drinkwater v Howart NSWCA 222"AustLii". AustLii.
- Bolton v. Stone,  A.C. 850 see also Roads and Traffic Authority of NSW v Dederer  HCA 42
- Roe v Minister of Health (1954) 2 AER 131; see also Glasgow Corporation v Muir (1943) 2 AER 44
- Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
- Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem  HCA 48 AustLII;Strong v Woolworths (2012) 285 ALR 420 AustLII; March v Stramare  HCA 12 AustLII; Wallace v Kam  HCA 19 AustLII
- March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 AustLII
- Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441
- Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
- Interestingly, the plaintiff's physical injuries were minor and more likely caused by a 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.
- She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."
- Overseas Tankship (UK) Ltd v Miller Steamship Co Pty  2 All E.R. 709
- Jaensch v. Coffey (1984) 155 CLR 578
- Kavanagh v Akhtar  40492/97 NSWSC 779 Austlii
- Also see the case of Imbree v McNeilly  HCA 40 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2008/40.html?stem=0&synonyms=0&query=title(imbree%20and%20mcneilly%20)
- Tame v. NSW (2002) 211 CLR 317
- See, eg, Sharman v Evans  HCA 8; (1977) 138 CLR 563 Austlii
- See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
-  NSWSC 779 AustLII
- Blyth v Birmingham Waterworks Co (1856) Ex Ch 781
- Todorovic v Waller (1981) 150 CLR 402 AustLII
- The breadth of negligence is often associated with an "in terrorem effect"
- Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0-19-925711-6.789018279AB001
- Kujinga, Benjamin (2009). "REASONABLE CARE AND SKILL — THE MODERN SCOPE OF THE AUDITOR'S DUTY". GAA Accounting.
- Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002). "Audits and Auditors". Corporations Law in Australia. Federation Press.
- Britannica 1911's account of negligence: an interesting historical read, preceding the era of Buick Motor and Donoghue v. Stevenson.