Understanding the Law
May 24, 2013

Negligence – Part 2

The law pertaining to negligence is quite broad and many writers have made the topic the subject of a single book. Like most topics, I would not be able to give you all the details. However, I hope that by now you have a grasp of the topic and I will endeavour to expand on what you already know.{{more}}

Let us go back a bit on the substantial parts of the topic covered two weeks ago. According to the case law in this area, there is a duty of care when there is interaction between persons who are so close to one another that if one is careless then he can inflict some harm or injury to the other person. It is therefore fair for that person who caused the harm to compensate the victim who suffered damages.

How can a breach of the duty of care be determined? The court tries to be fair as much as possible and although there is no hard and fast rule for the standard of care, an objective test has been devised. This is the “reasonable man test”. It is assumed that the ordinary prudent and reasonable man will take so much care as to avoid injuring another. The issue is one of what a reasonable man who is cast in the same situation would do. If the defendant’s action falls below the standard of the reasonable man, then this would constitute a breach of the duty of care. The reasonable motorist would not take any risk in driving the passengers to their destination; he would observe all the traffic rules; he would not exceed the speed limit and he would respect the rights of other road users. In that way, he would avoid an accident and injury to his passengers.

Where a professional is being sued for an act in negligence, the test is not what the ordinary prudent man or what the best physician would do. It is what a reasonable competent physician (Boland v Friern Hospital MC 1957) or a person skilled in his field would do.

After the breach is established, there is the question of the damages that were suffered by the claimant and by extension caused by the defendant. The claimant must show that he sustained damages in the accident. The test is a “but for” test. In other words it must be shown that “but for” the negligent action of the defendant, there would be no injury to the claimant. Only the damages caused by the defendant would be considered. If it happens that after suffering damages the victim suffers more damages by the action of another, then the intervening action could break the chain of causation and make the second person liable only if there is gross negligence. The damage must not be too remote and only the foreseeable damages will be considered.

As said before, the claimant must prove that the defendant has a duty of care; that he breached the duty and damages resulted. There are times when the claimant might not be in possession of all the facts. In this situation, the case could turn on the defendant, who would have to show why he is not negligent and liable. In such instances the thing that caused the damage might have been under the control and management of the defendant and there is no other explanation for it.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com