INDEX

Introduction

1 Elements of negligence claims

1.1 Duty of care

1.2 Breach of duty

1.3 Causation

1.3.1 Factual causation (actual cause)

1.3.2 Legal causation (proximate cause)

2 Damages

2.1 Types of damages

3 Defences
 LIST OF CASES

1. Donoghue v Stevenson 
2. Bolton v. Stone (1951)
3. Palsgraf v. Long Island Rail Road Co.
 NEGLIGENCE

Negligence  is a failure to exercise appropriate and or ethical ruled care expected to be exercised
amongst specified circumstances. The area of tort law known as negligence involves harm
caused by failing to act as a form of carelessness possibly with extenuating circumstances. The
core concept of negligence is that people should exercise reasonable care in their actions, by
taking account of the potential harm that they might foreseeably cause to other people or
property.
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 may be assessed in general terms according to a
five-part model which includes the assessment of duty, breach, actual cause, proximate cause,
and damages.

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.
Most jurisdictions say that there are four elements to a negligence action:

1. duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable

care,
2. breach: the defendant breaches that duty through an act or culpable omission,
3. damages: as a result of that act or omission, the plaintiff suffers an injury, and
4. causation: the injury to the plaintiff is a reasonably foreseeable consequence of the
defendant's act or omission.
Some jurisdictions narrow the definition down to three elements: duty, breach and proximately
caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate
cause, and damages. However, at their heart, the various definitions of what constitutes negligent
conduct are very similar.

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 [1932] established the modern law of negligence, laying the
foundations of the duty of care and the fault principle which, (through the Privy Council), have
been adopted throughout the Commonwealth. May Donoghue and her friend were in a café in
Paisley. The friend bought Mrs Donoghue a ginger beer float. She drank some of the beer and
later poured the remainder over her ice-cream and was horrified to see the decomposed remains
of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue
the cafe owner, instead suing the manufacturer, Stevenson. (As Mrs Donoghue had not herself
bought the ginger beer, the doctrine of privity included a contractual action against Stevenson).
The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict
(the Scots law nearest equivalent of tort). The case proceeded to the House of Lords, where Lord
Atkin interpreted the biblical ordinance to 'love thy neighbour' as a 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 1contemplation as being so
affected when I am directing my mind to the acts or omissions that are called in question."

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, which is totally based on observation and personal
prejudice or view) 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,Which is totally based on ground facts and reality without any
personal prejudice or point of view.] 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.
In Donoghue v Stevenson, Lord Macmillan declared that "the categories of negligence are never
closed"; and in Dorset Yacht v Home Office it was held that the government had no immunity
from suit when they negligently failed to prevent the escape of juvenile offenders who
subsequently 2vandalise a boatyard. In other words, all members of society have a duty to
exercise reasonable care toward others and their property. In Bolton v. Stone (1951), the House
of Lords held that a defendant was not negligent if the damage to the plaintiff were 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 a cricket ground. Finding that no batsman would
normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss
Stone, the court held her claim would fail because the danger was not reasonably or sufficiently
foreseeable. As stated in the opinion, 'reasonable risk' cannot be judged with the benefit of
hindsight.

1
Deep reflective thought
2
Destroy or damage
CAUSATION
In order for liability to result from a negligent act or omission, it is necessary to prove not only
that the injury was caused by that negligence, but also that there is a legally sufficient connection
between the act and the negligence.

Factual causation (actual 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. When 'but for' test is not satisfied and the case is an
exceptional one, a commonsense test ('Whether and Why' test) will be applied 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.
3
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 (proximate cause)

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 4bystander. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because
3
A highly heat resistance fibrous silicate mineral that can be use as fabric
4
A person who is present in event but does not take part
of fireworks explosion that fell on her as she waited on a train platform. The scales fell because
of a far-away commotion but it was not clear that what type of commotion caused the scale to
fall, either it was the explosion's effect or the confused movement of the terrified people. 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, which became the cause of
5
commotion on platform, and 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.

DAMAGES
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.
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.

5
A state of confused or noisy disturbance
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).
 Aggravated damages - In contrast to exemplary damages, compensation are given to the
plaintiff when the harm is aggravated by the defendant's conduct. For example, the manner
of this wrongful act increased the injury by subjecting the plaintiff to humiliation, insult.

DEFENCES

 Contributory Negligence: This occurs when a plaintiff fails to take reasonable

precautions which then combined with the defendant’s negligence to cause injuries to the
plaintiff. In other words, the plaintiff would likely have avoided the injuries if they were
also not negligent. 
o One example would be if someone else’s car crashes into your car because the
other driver was going beyond the speed limit but you did not take proper steps to
avoid the collision because you were texting while driving. The doctrine of “pure
contributory negligence” is used by some states. 
 Under this doctrine, even if the victim is only 1 percent at fault, they can
be denied compensation. There is a exception to the contributory
negligence defense called “last clear chance” where the defendant will still
be held liable even if both parties were negligent if the defendant could
have avoided the injury using ordinary care. 
 But in general, the doctrine of contributory negligence can lead to harsh
results because a plaintiff who was just a little bit careless can be
completely denied compensation for their injuries. Because of this, many
states have replaced the contributory negligence defense with the defense
of comparative negligence.
 Comparative Negligence: The doctrine of comparative negligence reduces a plaintiff’s
recovery by the percentage in which the plaintiff is at fault for the incident which led to
the injuries.
o A majority of states have modified this rule and they bar a plaintiff from
recovering compensation if the plaintiff is as much at fault or more at fault than
the defendant. There are different types of comparative negligence such as “pure”
or “modified”. 
o Under pure comparative negligence, the plaintiff is awarded a percentage of the
damages for which the defendant is responsible while under modified
comparative negligence, the plaintiff is awarded damages only if their negligence
is equal to or less than the defendant’s negligence.

 Assumption of Risk: If a plaintiff assumes the risk involved in an activity which is

obviously dangerous but proceeds to engage in that activity anyway, then the plaintiff
may not be able to recover compensation. 
o But for this defense to apply, the plaintiff must have had actual, subjective
knowledge of the risk involved in the activity and the plaintiff must have
voluntarily accepted the risk involved in the activity.
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