Negligence

This article is about the legal concept of negligence; see also neglect.

In law, negligence is a type of tort or delict that can be either criminal or civil in nature.

Etymologically, the words neglect and negligence originate from the Latin neglectus, meaning "disregarded", from the verb neglegere; neg meaning not, and legere meaning choose.

Negligence in private law

In the common law, negligence is the basis of most non-intentional torts or wrongs when loss or damage is caused to an individual by the nonfeasance, misfeasance or malfeasance (i.e. a failure to act, an inadvertent action, or an intentional action) of another. In civil law systems such those found in continental Europe, Quebec, and Puerto Rico, negligence is classified as a form of extra-contractual responsibility, sometimes called a quasi-delict in distinction to the more willful delicts within the conceptual framework of the law of obligations. The detailed rules are not the same as those set out below under the Anglo-American common law.

Note: unless otherwise stated, the rest of this page refers to negligence under the civil not the criminal law as practised in most jurisdictions.

Negligence in common law countries

Negligence arose from the common law and, although some applications may now be incorporated into statute or codes, it is considered the primary basis upon which to determine liability in tort (in the United States where juries sit in civil trials, succinct definitions of principles are found in the jury instructions). The general test of liability requires the plaintiff or claimant to prove that:

the defendant owed a duty of care to the plaintiff/claimant;
the defendant breached that duty of care;
this breach caused loss or damage to the plaintiff/claimant; and
the defendant should compensate the plaintiff/claimant for that loss or damage.

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.

Components of a negligence cause of action

When considering a cause of action based in whole or part on negligence, the court must consider the following elements:

1. Duty

For the full articles, see duty of care and duty of care in English law

A person owes a duty of care to another when the reasonable person would foresee that that other will be exposed to the risk of injury if the particular acts or omissions are continued. So, for example, the driver of a vehicle owes a duty to anyone within the area of risk when moving, i.e. other road users, pedestrians, and the owners of adjacent land and buildings are owed a duty to drive carefully. But no duty is owed to those who are not foreseeably at risk from the given activity.

2. Breach of duty

For the full page on English law, see breach of duty in English law

Once it is established that the defendant owed a duty to the plaintiff/claimant, the second question is whether the duty was breached. The test is both subjective and objective. If the defendant actually realized that the plaintiff/claimant was being put at risk, taking the decision to continue that exposure to the risk of injury breaches the duty. If the defendant did not actually foresee that another might be put at risk, but a reasonable person in the same situation would have foreseen the possibility that another might be injured, there will be a breach. This must be judged at the time of the events and not with the benefit of hindsight: see Roe v Minister of Health (1954) 2 AER 131.

For the rule in the U.S., see: calculus of negligence

3. Causation

For the full pages on English law, see causation in English law and breaking the chain

For the defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. There are two elements in the test of causation, namely: actual cause (sometimes referred to as "cause in fact") and legal cause (sometimes referred to as "proximate cause").

(a) Cause in Fact
Was the defendant the actual cause of injuries sustained by the plaintiff/claimant. A "But-For Test" is generally employed which has three elements:

Identify the loss or damage sustained by the plaintiff/claimant;
identify the specific conduct alleged to be the cause of that loss or damage;
demonstrate that the specific loss or damage would not have occurred "but for" the specific conduct of the defendant.

Four areas where cause in fact is difficult: 1) Multiple Defendants 2) Alternative liability theory 3) Market Share liability 4) Loss of chance - medical uncertainty

(b) Proximate Cause
Proximate cause is based on a test of foreseeability. Once a breach of the duty of care has been established, the question is whether a defendant should be liable for all the loss or damage flowing naturally from that breach. For this purpose, a distinction is made between loss or damage which is "proximate", and loss or damage which is "remote". For example, suppose that while driving, X collides with a second vehicle. Unknown to X, this second vehicle is carrying explosives to be used for rock blasting in a local mine. There is an explosion in the street. Other road users and pedestrians are directly injured, adjacent properties are damaged, and people in the immediate vicinity are injured by flying glass and falling debris. Around the corner, Y is so shocked by the sound of the explosion that he drops his laptop computer which is irreparably damaged. Half a mile away, the wife of the man who supervises the blasting at the local mine, hears the explosion, looks at her watch, and falls in a faint when she realises that the explosion is half-an-hour too early. She suffers a miscarriage. Later, police officers and ambulance crews attending the street scene are traumatised by the carnage.

The general rule is that a claim will only succeed for reasonably foreseeable loss or damage. This limits claims to those reasonably foreseeable at the time of the breach and for loss or damage of the same kind as that actually suffered. All those on the street at the time of the explosion (or their surviving relatives) will be able to claim. But, although the wife of the mine employee would not have been injured "but for" the explosion, she is a remote plaintiff/claimant because she is physically far removed from the area of risk. If she had been foreseeable, the defendant must take the plaintiff/claimant as found which would include her pregnancy (see the eggshell skull cases). The police and ambulance crews may be removed from the area of risk in terms of time, but it is always foreseeable that such officers will attend at the scene of a serious accident, and their psychological injuries may be considered foreseeable depending on the relevant rules in each jurisdiction. Once it is established that the breach was not too remote a cause of some injury, the precise nature and extent of the actual damage need not be foreseeable. Hence, the fact that a pedestrian around the corner might suffer economic loss around the corner and outside the area of physical risk might not have been foreseen by the defendant, but that is not necessarily a defense because it is foreseeable that such people may suffer nervous shock when hearing the sound of an accident (which may involve loss of earnings and other financial losses), and the consequence of dropping things carried is not too remote in those circumstances. For these purposes, it does not matter what the plaintiff actually foresaw. The test is purely objective.

4. Damage

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. This 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), or reputational (e.g. in a defamation case). In English law, at least, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances. d

5. Defenses

The defendant may have a complete or partial defense to the claim. Where the defense is complete, the plaintiff/claimant will be denied damages. Where the defence is partial, the amount of damages awarded to the plaintiff/claimant will be reduced on a pro rata basis. In addition to the issue of remoteness, the behavior of the plaintiff/claimant is relevant for different reasons:

the defense of volenti non fit injuria (Latin for "a willing victim cannot claim") operates when the plaintiff/claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defense may arise where the defendant has given a warning, whether expressly to the plaintiff/claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.
contributory negligence is either a mitigatory defense or, in the U.S., it may be an absolute defense. The general rule is that a plaintiff/claimant's award is reduced by the percentage of contribution made to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. In the U.S., if the defendant proves both that the plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damage suffered, this is a complete defense. This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. In all but four U.S. states, it has been replaced judicially or legislatively by the doctrine of comparative negligence, under which the court will reduce the plaintiff's damages by the degree to which the plaintiff's own negligence contributed to his or her loss.
if the plaintiff/claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability given the application of ex turpi causa non oritur actio - the Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second storey window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention.

6. Damages

Where a plaintiff/claimant proves (1) - (4) above, and there is no defence, damages are payable for his or her loss. 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:

Special damages - losses suffered from the date of the tort up until the date of trial and which can be precisely quantified in monetary terms.
General damages - losses that cannot be quantified exactly in monetary terms (the actual pain, suffering, and loss of amenity caused by the negligent act), as well as expected future losses from the date of trial (e.g. continuing pain and suffering, and loss of earnings).

Where the plaintiff/claimant proves only negligible loss or damage, or the court is unable to quantify the losses, the court may award nominal damages.

In certain limited cases the court may depart from the compensatory principle and award "punitive" or "exemplary" damages in addition to general and special damages. This is usually done where the defendant intentionally committed the tort for economic gain or otherwise deserves to be punished. There is also both specific and general deterrence in that the defendant may wish to avoid a similar penalty in the future and so be deterred, while other individuals observing the outcome of the trial may also wish to avoid having to make that payment. However, the deterrent quality of these awards may be illusory because the majority of defendants are likely to be insured against common perils.

Procedures and law in civil law jurisdictions

There are some differences in the law of negligence in civil law jurisdictions, but the basic principles of delict and quasi-delict are similar albeit established by courts applying the inquisitorial system rather than the adversarial system. So investigative judges or magistrates will interview all parties and witnesses, and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy.

Leading cases

Criminal negligence

See separate article on Criminal negligence

Tort law | Law of negligence

Gourt Home::Gourt :: Negligence