As a matter of fact and law, it is indeed true that to successfully bring a claim in negligence, the claimant has to prove on a balance of probabilities the existence of a duty of care, breach of that duty by the defendant and a resultant loss, harm or injury to them. This is known as "the three-part test" for negligence. In addition to these essential elements of the tort of negligence, no defenses should be applicable if a claim is to succeed. However, successfully proving the existence of these elements and getting remedies from courts is not a walk in the park for most claimants given the high threshold tests set by judicial precedents. Negligence, as Baron Alderson J defined it in Blyth v Birmingham Waterworks (1856) Exch, refers to the omission to do something which a reasonable and prudent man guided by considerations regulating human affairs would do. It also means doing something that a prudent or reasonable person in the defendant’s place would not do. Thus, negligence requires not perfection as such from a defendant, but reasonableness and prudence.
Proving the Existence of a Duty of Care
According to Bryden and Storey (2011), a duty of care means a legal relationship or circumstance that exists between a claimant and a defendant that requires that the latter party takes reasonable care not to harm the former. The element of duty of care in negligence claims was elaborated in the celebrated case of Donoghue v Stevenson (1932). Here, Lord Atkin developed the “neighbor principle” for determining the existence of a duty of care owed by a defendant to the plaintiff. Under this test, for a duty of care to exist, there must be a reasonable foresight of harm and proximity relationship (Deakin et al. 2012). As for the foreseeability requirement, a person must have in his contemplation all those individuals who are likely to be adversely affected by his acts or omissions and hence take reasonable measures to avert or reduce the risk of injury to them (Harlow 2005). Hence, in Home Office v Dorset Yacht Co Ltd [1970] AC 1004, the House of Lords found the existence of a duty of care on the part of the Home Office for inaction of its Borstal officers resulting in young offenders escaping and causing damage to a Yacht. The risk of harm was foreseeable. This position was affirmed in Topp v London Country Bus [1993] 1 WLR 976.
Proximity, on the other hand, refers to a close relationship between the claimant and the defendant where the defendant would be reasonably expected to have the claimant in his contemplation. Thus, in Bourhill v Young [1943] AC 92, a negligence claim by a pregnant woman who suffered a psychiatric shock after witnessing an accident negligently caused by the defendant failed due to lack of proximity between the parties. One has no duty, however, to warn another of obvious risks (Norris 2008, p. 194).
Proof of Breach of Duty of Care
After successfully proving the existence of a duty of care that the defendant owes them, a claimant in a negligence claim has an additional herculean task. That is, to prove further, that the defendant was in breach of this duty of care (Turner 2014). This is not always an easy burden to be discharged by the claimant; hence many cases on negligence fail at this hurdle. This essential element of negligence “implies the pre-existence of a standard of proper behavior to avoid imposing undue risks of harm to other persons and their property” (Owen, 2007, p. 1676). Breach of duty thus exists where the defendant has failed to meet the proper standards of care or where their acts fall below this s threshold of care reasonably expected from a person in his position. The test to be applied here, as established in Vaughan v Menlove (1837) 3 Bing. N.C. 467 is an objective test based on reasonable person standards. Also, according to Lunney and Oliphant (2013), the objective level of care involves consideration of the defendant’s experience, physical and mental disability, age and special skills (p. 181). For instance, in the realm of football, no high standards of care are imposed on an amateur footballer as compared to an experienced one as was the case in Condon v Basi [1985] 1 WLR 866.
Moreover, in the case of professionals such as doctors, the standard of care used to determine breach is that of a reasonable medical practitioner in the medical profession (Edwards 2014). This position was stated by the court in the landmark medical negligence claim case of Bolam v Friern Barnet Hospital Management Committee (1975) QBD. Here, a doctor at the defendant’s hospital had given the claimant an electro-convulsive therapy which led to bone breakage. Evidence was led at trial to the effect that other physicians in the same profession would have given relaxant drugs while others would not. The court held that a physician is not in breach of a duty of care if they act within the standard practice accepted as responsible by a body of skilled medical men within that profession. That is, a doctor is not negligent merely on the basis that other doctors in the same professional field would take a contrary medical opinion or view, so long as his act is not reckless and out of proportion. This is what has come to be called ‘the Bolam test." However, as further held in Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151, to escape liability in negligence, the doctor’s medical opinion must be logical and defensible medically. According to Murthy (2007), where the negligence is gross, it turns to a case of criminal negligence. Furthermore, in Nettleship v Weston [1971] 3 WLR 370, it was held that a learner driver’s standard of care is that of a reasonable qualified and competent driver and not less or more. This decision was affirmed in Mansfield v Weetabix (197) CA. Also, as held in Mullin v Richards [1998] 1 WLR 1304, a child’s act or omission is to be judged by the standards of a reasonable minor of their age, and not that of a reasonable adult. Also, the court held in Phillips v Williams Whitely Ltd (1938) KBD that a jeweler is under no legal obligation or duty to take similar precautions that would be expected from a surgeon. Here, the claimant developed an infection in his ears after having them pierced by the defendant, a jeweler. The plaintiff lost because, according to the court, the jeweler had taken all possible precautions and hence the claimant had not proved that they had negligently performed the operation.
Additionally, in applying the objective standards test to determine whether the defendant’s act or omission was reasonable or in breach of a duty of care, courts have to balance between several factors (Lunney & Oliphant 2013, p. 163). Firstly, judges consider the likelihood of harm whereby people are not reasonably expected to guard against unforeseeable events as was the case in Bolton v Stone [1951] AC 850 and Roe v Minister of Health [1954] 2 WLR 915. In Bolton's case, the claimant was hit and injured by a cricket ball from a 17-feet high cricket court fence. He lost for lack of proof of breach of care since the risk of harm was too far-fetched and slight and the expense of reducing it was too greater than would be reasonably expected from a cricket club owner. Secondly, courts consider the seriousness of the harm caused as was the case in The Wagon Mound No.2 [1967] 1 AC 617 and Paris v Stepney [1951] AC 367. In The Wagon Mound Case, there was leakage of furnace oil from the defendant’s vessel at a Sydney Harbor Wharf. A valve had not been closed by the vessel masters. Cotton debris in the vessel formed sparks and ignited the oil thus causing a fire that destroyed the Wharf and other boats anchored there. There was a breach of duty by the defendants due to the seriousness of the harm likely to be caused by oil leakage due to non-closure of the valve. Thirdly, the cost of preventing the harm or damage from occurring is also taken into consideration by courts in assessing breach of the duty of care. This also includes the extent to which the defendant went to try and extinguish the risk of loss. Thus, in Latimer v AEC [1953] AC 643, the claimant who was the defendant’s employee slipped and fell on the slippery factory floor caused by inclement weather. The defendant erected warning signs and put some sawdust in places mostly used by employees to make them as safe as it possibly could. The trial judge granted the claimant judgment, arguing that the defendant ought to have closed down the factory for being unsafe. The House of Lords reversed, holding that the defendant had not breached any duty as there was no such obligation to have the company closed down since the cost and expense of doing this would be disproportional to the risk caused by the adverse weather. The defendant had also taken reasonable precautions towards minimization of the risk posed by the weather hence no breach of duty.
Establishing Consequential Loss: Causation
Finally, after discharging the above onus, a plaintiff in a claim for negligence is under a legal obligation to demonstrate that as a result of the defendant's breach of a duty of care, they suffered a direct loss, harm or injury. That is, it has to be proved on the preponderance of evidence by the claimant, that it was the defendant's act or omission that caused the injury and not anything else. There can be legal and factual causation in the law of negligence. Courts determine factual causation using the “but for” test enunciated in the case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 and affirmed in Heil v Rankin [2000] 2 WLR 1173. Here, the question to be asked is whether the result would have occurred had it not been the defendant’s act or omission (Horsey & Rackley 2013, p. 222). If the answer is affirmative, then the defendant is liable for the tort of negligence. In Barnett’s case, the claimant had gone to the defendant hospital with stomach pains and vomiting and was seen by a nurse who then contacted the duty doctor. He, however, succumbed to arsenic poisoning some five hours later. It was the case that even if the doctor had been there at the time, he could not have been able to save him. Thus, in a claim for negligence by the hospital, it was held that the claim failed due to lack of causation since the failure by the doctor to examine him did not result in his death, but poisoning did. In such as a case where the chain of causation through a new intervening act or novus actus interveniens, liability will depend on whose act it is that broke the chain. Where it is the act of a third party that breaks the chain of causation, it has been held in Lamb v Camden LBC [1981] 2 All ER 408 that the defendant is not negligent. Also, where the intervening act is that of the claimant as was in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, the defendant is not liable.
Availability of Defenses for the Defendant
In spite of a claimant having managed to prove all the above elements, if the defendant can successfully demonstrate the existence of a defense for their action or inaction, a negligence claim is likely to fail or compensatory damages reduced. The most common defenses to a negligence claim include contributory negligence, consent, necessity, voluntary assumption of risk (volenti non fit injuria), self-defense and ex turpi causa (Steele 2014, p. 270). Under contributory negligence, the claimant’s case will fail if the defendant can prove that the damage to them was caused partly by the defendant's fault and partly by the claimant's failure. This was the case in Butterfield v Forrester (1809) 11 East 60 and Davies v Mann (1842) 10 M&W 546. Moreover, it the defendant can show that the claimant acted voluntarily in accepting the risk of harm, the defendant will not be liable for negligence. Claimant's knowledge and full appreciation of the risk must be established according to Smith v Austin Lifts Ltd [1959] 1 WLR 100. The claimant must also have voluntarily undertaken to run the risk of harm as was held in Smith v Baker [1891] AC 325. Under the defense of ex turpi causa, it was held in Pitts v Hunt [1990] 3 All ER 344 that a claimant who suffers damage while taking part in a criminal activity will fail in an action for negligence against the defendant.
Conclusion
As has been shown through case law authority and legal literature materials, to succeed in an action for negligence, a claimant has to satisfy the "three-part test" and also prove that a defendant is not entitled to a defense. The burden of proving these elements on a balance of probabilities lies with the plaintiff and is not always an easy hurdle to jump over before damages can be awarded. Probably this legal threshold has been set by courts and statutes to prevent a floodgate of litigation involving frivolous allegations of negligence as a matter of policy consideration (Turner 2014, p, 34).
References List
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