Tort Course Notes
1. NEGLIGENCE
Definition
In the case of Blyth vs Burmingham waterworks co. 1856 J. Anderson defined negligence as the breach of duty caused by the omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
Another definition is in the case of Heaven Vs Pender 1883 vol 1 11 QBD p. 503. actionable negligence consist in the neglect of the use of ordinary care or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has a duty to take care which result in damages undesired by the defendant to the plaintiff.
Elements of Negligence
A legal duty to exercise due care on the part of the party complained of toward the party complaining, (i.e. the plaintiff must prove that the defendant owed him a duty of care).
Breach of the said duty( i.e. the plaintiff must prove that there has been a breach of the said duty)
Consequential damage(i.e. the plaintiff must prove that he has suffered injury to his person or property.
The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and wherein that duty has caused damage. In such circumstance carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.
In the case of Donoghue vs. Stevenson 1932 A.C p.562, the cardinal principal of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. In strict legal analysis negligence, means more than careless conduct whether in commission or omission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.
Existence of Duty
The existence of duty situation or a duty to take care is thus essential before a person can be held liable in negligence. Normally the question of existence of a duty in a given case is decided on the basis of existing precedent covering similar situations. But it is now well accepted that new duty situations can be recognised.
A privilege or liberty of yesterday may become a duty of today for the law of negligence is consistently influence and transformed by social economic and political considerations.
However, the general principal of foreseeability and proximity applicable in solving case presenting the existence of or otherwise of a new duty situation was laid down by Lord Artkin in the celebrated case of Donoghue