Tort of negligence, elements and it's defences

MEANING OF NEGLIGENCE

Is a failure to exercise the care that a reasonable prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not ( necessary) intentional harm.

According to Jay M. Feiman 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 foreseeably cause to other people.

Someone who suffers loss caused by another’s negligence may be able to sue for damages to compensate for the 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, he relationship between the plaintiff and the defendant, and other factors.

In everyday usage, the word “negligence” denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.

Thankfully, in order to prove the negligence and claim damages, a claimant has to prove a number of elements to the court, include the following;

DUTY OF CARE

As we see, the concept of a duty of care was created in the Donoghue case, the house of lords stated that every person owes a duty of care to their neighbor. The lords went to explain that “neighbor” actually means a “person” so closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected. If still in operation today the courts would must certainly be over run with cases.

BREACH OF DUTY OF CARE

In many cases brought before the courts it is evident that a duty of care exists between the defendant and the claimant. The real issue whether or not the actions of the defendant were sufficient to meet their duty. To determine this the court will set the standard of care that they should have met. This standard of consists of the actions which the court considers as “reasonable person” would have taken in the circumstances. If the defendant failed to act reasonably given their duty of care, then they will be found to have breached it.

DAMAGE

This is a loss caused to a person after breach of duty to care, an affected part of this circumstances is capable of claiming the damage because, a person who breached a duty to care was lawfully supposed to take care of that thing which caused damage.

Sometime tort negligence have its defenses when happen a person commit it, the following are defenses of negligence.

• Contributory negligence, it was the common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong,

In case, Butterfield Vs Forrester[1], the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’oclock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole and fell with the horse, it was held that the plaintiff could not claim damages as he was also negligent.

• Act of God or Vis major, it is a such a direct, violent sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen, if foreseen, could not by any amount of human care and still, have been resisted. Such as , storm, extraordinary fall of rain, extraordinary high tide, earth quake etc..

In case, Nicholas  Vs Marsland[2], the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four county bridges. It was held that, the defendant was not liable as the water escaped by the act of God.

• Inevitable accident, also works as a defense of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. It means accident physically unavoidable.

In Brown V. Kendal[3], the plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidently hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable.

Voluntary acceptance of the risk of injury (volenti non fit injuria), in this manner, if a defendant can prove the claimant accepted the risk of loss or damages they will not e liable. Acceptance can be expressed ( usually by a consent form being signed) or implied through the claimant’s conduct.

In case, Wooldridge V. Summer[4], the plaintiff was a professional photographer, during a horse show he positioned himself at the edge of the arena. He was knocked down and injured by a horse when the rider lost control while riding too fast. The court of appeal held that the defendant riders failure to control his horse was simply an error of judgement which did not amount to negligence. The standard of case owed by a competitor to a spectator was not to act with reckless disregard for the spectators safety.

• Criminal activity (Ex turpi causa), the court may deny an action to a claimant who suffered damage while participating in a criminal activity. In negligence actions the court may find that no duty of care was owed in the circumstances. The defense may be referred to as illegality of ex turpi causa non oritur acto. This means that an action cannot be founded on a sad cause.

In case, Vellino V. Chief constable of the greater Manchester police[5], the claimant was injured when he jumped from a second floor window in order to avoid arrest by the police. He alleged that the police owed a duty of care not negligently to let him escape after they arrested him. The court of appeal (by a majority) held that there was no duty of case in these circumstances rather than applying the defense. The dissenting judge (sedley L J) felt that the power to opportion responsibility in contributory negligence was a mere appropriate method of doing justice.

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[1] (1809) 11 East 60;

[2] (1875) LR 10 EA 255;

[3] (1859) 6 cossing 292

[4] (1963) 2 QB 43

[5] [2002] 1 WLR 218