Negligence

Negligence, put simply, is failing to meet the standards of a reasonable person.

Negligence is below recklessness in the pyramid of levels of mens rea and is reserved for specific offences such as traffic and driving offences. Negligence, put simply, is failing to meet the standards of a reasonable person.

In 1932 the case of Donoghue v Stevenson [1932] gave Lord Atkin the opportunity to draw up a general rule or principle which would cover all the situations where the courts had already held that a party could be held liable in negligence.

Lord Atkin stated:"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question,Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who,then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." This has become known as the neighbour principle.

The neighbour test as laid down by Lord Atkin has been criticised for being too wide.

The basic elements of a tort action in negligence began to emerge. These were that:

  • there was an existence of a duty of care;
  • there had been a breach of duty based on an objective test;
  • damage had resulted as a consequence of the breach based on the 'but for' test;
  • and the damage was not too remote.

There is the matter of policy considerations which play an important part in the development of the tort of negligence. In some situations by reason of policy, the courts have denied a claim.

There are some situations where the conduct of the accused is so bad that it amounts to gross negligence. Gross negligence can give rise to gross negligence manslaughter. In R v Adomako (1994) it was decided that an anaesthetist was so negligent in failing to notice that an oxygen pipe had become disconnected during an eye operation, that he was convicted of gross negligent manslaughter. The conviction was appealed against but the House of Lords upheld the Court of Appeal and followed the law as stated in Bateman (1925).

Therefore with manslaughter the consequence, that is the death of the victim, may be the same, but the mens rea may be lower and only require recklessness or negligence.

The law recognises that in some circumstances it is only fair to accept that the individual has done all that they can to avoid the problem or harm intended to be prevented by the strict liability legislation. This would be the case for a manufacturer or producer who has followed good practice and used all reasonable care and skill to protect the public using known information about processes or materials and technical know how.  In such situations Parliament will sometimes include what is known as a due diligence or no negligence defence, enabling the defendant to raise such a defence.

The principles of contributory negligence apply to the tort and if it can be shown that the claimant is partly responsible for the escape the amount of damages claimed may be effected. In The Eastern and South African Telegraph Company Limited v The Cape Town Tramway Companies Limited (The Cape of Good Hope) [1902] the principle was applied as one of the parties had used their property in a special way which was considered a contributory factor. If a party is found to be partly responsible for the escape their damages may be reduced.


Discuss the development of the concept of the duty of care in the tort of negligence

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