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Legal Information Access Centre (LIAC) - Hot Topics |
Negligence comes under a large body of law called ‘torts’. Torts are wrongdoings that give injured individuals or organisations the right to sue other individuals or organisations on their own behalf. (Note: organisations include businesses.)
Torts can be compared to crimes, where it is the Crown who takes legal action on behalf of the community. In other words, a tort is a type of ‘civil’ wrong as opposed to a criminal wrong. Other types of civil law matters include contract disputes and family law.
Tort law evolved over a long period of time as part of the common law of England, which we inherited. Common law is judge-made law, as opposed to legislation or statutes, which are created by parliament. Statutes cannot cover every single aspect of the law, of course, and even where they do exist, courts still have to interpret them. It is these decisions that shape the ever-changing common law.
Courts can only make decisions on cases that are brought to them. Parliament does not face such restrictions, and is able to create statutes within the powers defined for it by the Constitution. Legislation passed by parliament overrides the common law to the extent that the two are inconsistent.
There are various kinds of torts. Defamation, trespass and nuisance are torts, but the most common is negligence. Broadly speaking, negligence involves carelessness, or a failure to take reasonable care for other people’s safety. An individual or organisation can be sued for their negligent acts or omissions that result in injury, death or property damage.
For negligence to be established, the plaintiff (the person bringing the action), must be able to prove each of three things:
> there was a duty of care – that is, there was an obligation on behalf of the defendant to take reasonable care to prevent injury arising from their act or omission
> this duty was breached – not only did the duty of care exist, there must have been an actual failure to use reasonable care
> this breach caused the injury – the injury was due to the breach of the duty of care, not to some intervening factor.
So, the question that arises is – was the risk of injury or damage ‘reasonably foreseeable’? This test rules out damage that is too remote, but past cases have shown that the test can be applied narrowly or widely. Courts have stated that the kind of damage must be foreseeable, not necessarily the actual damage or its extent. In Hughes v Lord Advocate2 [1963] AC 837, workers dug a manhole in a public street. They left the site after securing the manhole and placing paraffin lamps around it as a warning. Two young boys caused a paraffin lamp to fall into the hole, resulting in an explosion. One of the boys fell into the manhole, and suffered severe burns. The House of Lords decided that a child being injured by falling in the hole or being burned by a lamp was a foreseeable risk. Although the explosion was unforseeable, the injury fell within the kind of injury that could be foreseen, even though the severity was unexpected.
HOT TIP
In the past, it was difficult to establish a duty of care in the absence of a contractual relationship. But the landmark case Donoghue v Stevenson [1932] AC 562, extended the duty to anyone who can ‘reasonably be foreseen’ as likely to be injured by an act or omission. In that case, a woman who fell ill and suffered shock after drinking a bottle of ginger beer with a decomposing snail in it was able to sue the manufacturer, even though she had not bought the drink herself (that is, she had no contract with either the manufacturer or the retailer). Available at www.scottishlawreports.org.uk Select ‘Key Scottish cases’ and then ‘Donoghue v Stevenson’.
2. This is a UK case that is not freely available on the internet.