Editing Negligence (section)

==Elements of negligence claims==

To successfully pursue a claim of negligence through a lawsuit, a plaintiff must establish the "[[Element (criminal law)|elements]]" of negligence. In most jurisdictions there are four elements to a negligence action:<ref>{{cite journal|last1=Boehm|first1=Theodore R.|title=A Tangled Webb – Reexamining the Role of Duty in Indiana Negligence Actions|journal=Indiana Law Review|date=2003|volume=37|issue=1|pages=1–20 |doi=10.18060/3628 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/indilr37&div=8&id=&page=|access-date=22 September 2017|url-access=subscription}}</ref>
#duty: the [[defendant]] has a duty to others, including the [[plaintiff]], to exercise reasonable care,
#breach: the defendant breaches that duty through an act or culpable omission,
#damages: as a result of that act or omission, the plaintiff suffers an injury, and
#causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.<ref name="owen">{{cite journal|last1=Owen|first1=David G.|title=The Five Elements of Negligence|journal=Hofstra Law Review|date=Summer 2007|volume=35|issue=4|page=1671|url=http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|access-date=22 September 2017}}</ref> Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.<ref name="owen"/> Despite these differences, definitions of what constitutes negligent conduct remain similar.

===Duty of care===
{{Main|Duty of care}}

The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence, the term used is duty of care.<ref>{{Cite book|title=Torts In Ireland|last=Quill|first=Eoin|publisher=Gill & Macmillan|year=2014|location=Dublin|pages=19}}</ref>

The case of ''[[Donoghue v Stevenson]]'' (1932)<ref>''[[Donoghue v Stevenson]]'' [1932] AC 532</ref> established the modern law of negligence, laying the foundations of the duty of care and the [[fault (legal)|fault]] principle which, (through the [[Judicial Committee of the Privy Council|Privy Council]]), have been adopted throughout the [[Commonwealth of Nations|Commonwealth]]. May Donoghue and her friend were in a café in Paisley. The friend bought Donoghue a [[Ice cream float|ginger beer float]]. She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson. (As Donoghue had not herself bought the beer, the doctrine of [[privity]] precluded a [[law of contract|contractual]] action against Stevenson.)

The Scottish judge, [[Lord MacMillan]], considered the case to fall within a new category of delict (the Scots law nearest equivalent of tort). The case proceeded to the [[Judicial functions of the House of Lords|House of Lords]], where [[Lord Atkin]] interpreted the biblical ordinance to "love thy neighbour" as a legal requirement to "not harm thy neighbour". He then went on to define neighbour as "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 that are called in question."

In England the case of ''[[Caparo Industries Plc v Dickman]]'' (1990) introduced a "threefold test" for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be "fair, just, and reasonable" to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

In Australia, ''Donoghue v Stevenson'' was used as a persuasive precedent in the case of ''[[Grant v Australian Knitting Mills]]'' (AKR) (1936).<ref name=PC>{{Cite Bailii|litigants=[[Grant v Australian Knitting Mills]] |year=1935 |court=UKPC |num=62 |format=1 |parallelcite=[1936] [[Appeal Cases Law Reports|AC]] 85}}; {{cite AustLII|UKPCHCA|1|1935|parallelcite= (1935) 54 [[Commonwealth Law Reports|CLR]] 49 |date=21 October 1935 |courtname=auto}}.</ref> This was a landmark case in the development of the negligence law in Australia.<ref>{{cite web |url=http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf |title=Example of the Development of the Law of Negligence |website=law.uwa.edu.au}}.</ref>

Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of ''Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd'' (2002).<ref name="Tame HCA">{{cite AustLII|HCA|35|2002|litigants=Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd |parallelcite=(2002) 211 [[Commonwealth Law Reports|CLR]] 317 |courtname=auto |date=}}.</ref><ref name="Jaensch v Coffey">{{cite AustLII|HCA|52|1984|litigants=[[Jaensch v Coffey]] |parallelcite=(1984) 155 [[Commonwealth Law Reports|CLR]] 549 |courtname=auto |date=}}.</ref> Determining a duty for mental harm has now been subsumed into the ''Civil Liability Act 2002'' in New South Wales.<ref>{{cite Legislation AU|NSW|act|cla2002161|Civil Liability Act 2002|32}}.</ref> The application of Part 3 of the ''Civil Liability Act 2002'' (NSW) was demonstrated in ''Wicks v SRA (NSW); Sheehan v SRA (NSW)''.<ref>{{cite AustLII|HCA|22|2010|litigants=Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales |parallelcite=(2010) 241 [[Commonwealth Law Reports|CLR]] 60 |courtname=auto |date=}};<br>see also {{cite AustLII|HCA|15|2005|litigants=Koehler v Cerebos (Australia) Ltd |parallelcite=(2005) 222 [[Commonwealth Law Reports|CLR]] 44 |courtname=auto |date=}}.</ref>

===Breach of duty===
{{See also|Breach of duty in English law}}
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled.<ref>{{cite web |title=Breach of Duty in Negligence |url=https://ipsaloquitur.com/tort-law/breach-of-duty/ |website=IPSA LOQUITUR |date=18 July 2019 |access-date=23 October 2019}}</ref> The test is both subjective and objective. The defendant who knowingly (subjective, which is based on observation and personal prejudice or view) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any "[[reasonable person]]"(objective, which is totally based on ground facts without any personal prejudice or point of view) in the same situation would have realized, also breaches that duty.<ref>{{cite AustLII|HCA|12|1980|litigants=Wyong Shire Council v Shirt |parallelcite=(1980) 146 [[Commonwealth Law Reports|CLR]] 40 |courtname=auto |date=1 May 1980}}.</ref><ref>{{cite AustLII|NSWCA|151|2005|litigants=Doubleday v Kelly |parallelcite= |courtname=auto |date=}}; see also {{cite AustLII|NSWCA|222|2006|litigants=Drinkwater v Howart |parallelcite= |courtname=auto |date=}}.</ref> However, whether the test is objective or subjective may depend upon the particular case involved.

There is a reduced threshold for the standard of care owed by children. In the Australian case of ''McHale v Watson'',<ref>{{Cite AustLII|HCA|13|1966|litigants=McHale  v Watson |date=7 March 1966 |courtname=auto}}.</ref> McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. The same principle was demonstrated to exist in English law in ''Mullin v Richards''.<ref>''Mullin v Richards'' [1998] 1 WLR 1304</ref>

Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures, such as an obstetrician did not warn a mother of complications arising. In ''[[Montgomery v Lanarkshire Health Board]]'', the UK Supreme Court (hearing a Scottish [[delict]] case) decided that doctors are under a duty to ensure patients are aware of material risks in the treatment they recommend, and to make them aware (if possible) of any other reasonable treatment option<ref>{{Cite book| edition = 9| publisher = Sweet & Maxwell| isbn = 978-0-414-09040-8| last1 = Jackson| first1 = Rupert M.| last2 = Powell| first2 = John L.| title = Jackson & Powell on Professional Liability| location = London| series = The Common Law Library| date = 2022 |at=13-055 }}</ref>—a form of [[informed consent]].<ref>{{Cite book| edition = 6| publisher = LexisNexis| isbn = 978-1-4743-0715-4| last = Buckley| first = Richard A.| title = The Law of Negligence and Nuisance| location = London| series = Butterworths Common Law Series| date = 2017 |at=7.16}}</ref> Under Queensland's Civil Liability Act, doctors owe both objective and subjective duties to warn—breach of either is sufficient to satisfy this element in a court of law.<ref>{{cite Legislation AU|Qld|act|cla2003161|Civil Liability Act 2003|21}}.</ref>

In ''Donoghue v Stevenson'', Lord Macmillan declared that "the categories of negligence are never closed"; and in ''[[Dorset Yacht Co Ltd v Home Office|Dorset Yacht v Home Office]]'' it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard. In other words, all members of society have a duty to exercise reasonable care toward others and their property. In ''[[Bolton v. Stone]]'' (1951),<ref>''[[Bolton v. Stone]],'' [1951] A.C. 850 see also {{cite AustLII|HCA|42|2007|litigants=Roads and Traffic Authority of NSW v Dederer |parallelcite= |courtname=auto |date=}}.</ref> the [[Judicial functions of the House of Lords|House of Lords]] held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable. As stated in the opinion, "reasonable risk" cannot be judged with the benefit of hindsight.{{citation needed|date=March 2017}}  In ''[[Roe v Minister of Health]]'',<ref>''[[Roe v Minister of Health]]'' (1954) 2 AER 131; see also ''Glasgow Corporation v Muir'' (1943) 2 AER 44.</ref> Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence on the part of medical professionals accused of using contaminated medical jars, since contemporary standards would have indicated only a low possibility of medical jar contamination.

*''[[United States v. Carroll Towing Co.]]'' 159 F.2d 169 (2d. Cir. 1947)
''For the rule in the U.S., see [[Calculus of negligence]]''

====Intention and/or malice====
Further establishment of conditions of intention or malice where applicable may apply in cases of [[gross negligence]].<ref>{{Cite journal |pmc = 1618741|year = 2006|last1 = Thornton|first1 = R. G.|title = Malice/gross negligence|journal = Proceedings (Baylor University. Medical Center)|volume = 19|issue = 4|pages = 417–418|pmid = 17106507|doi=10.1080/08998280.2006.11928212}}</ref>

===Causation===
{{Main|Causation (law)}}

In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence.

====Factual causation (actual cause)====
{{See also|Causation in English law|Breaking the chain}}

For a defendant to be held [[Legal liability|liable]], it must be shown that the particular acts or omissions were the cause of the loss or damage sustained.<ref name="Tubemakers of Australia Ltd v Fernandez">''Tubemakers of Australia Ltd v Fernandez'' (1976) 10 [[Australian Law Reports|ALR]] 303; (1976) 50 [[Australian Law Journal Reports|ALJR]] 720 [http://www.austlii.edu.au/cgi-bin/LawCite?cit=10+alr+303 LawCite records].</ref> Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred "but for", or without, the accused party's breach of the duty owed to the injured party.<ref>{{cite AustLII|HCA|48|2009|litigants=Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem |parallelcite= |courtname=auto |date=}}; {{cite AustLII|HCA|5|2012|litigants=Strong v Woolworths |parallelcite=(2012) 246 [[Commonwealth Law Reports|CLR]] 182 |courtname=auto |date=}};</ref><ref name="March v Stramare">{{cite AustLII|HCA|12|1991|litigants=[[March v Stramare (E & MH) Pty Ltd]]|parallelcite=(1991) 171 [[Commonwealth Law Reports|CLR]] 506 |courtname=auto |date=}}.</ref><ref name="Wallace v Kam">{{cite AustLII|HCA|19|2013|litigants=Wallace v Kam |parallelcite= |courtname=auto |date=}}.</ref> In Australia, the High Court has held that the "but for" test is not the exclusive test of causation because it cannot address a situation where there is more than one cause of damage.<ref name="March v Stramare"/> When "but for" test is not satisfied and the case is an exceptional one, a commonsense test ("Whether and Why" test) will be applied<ref>{{cite Legislation AU|NSW|act|cla2002161|Civil Liability Act 2005|5d}}(2).</ref> Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on [[insurance]] bills and compensations, which sometimes drove compensating companies out of business.

==== Legal causation (proximate cause) ====
[[File:Train wreck at Montparnasse 1895.jpg|thumb|150px|Negligence can lead to collisions like the [[Montparnasse derailment]] at [[Gare Montparnasse]] in 1895.]]

Sometimes factual causation is distinguished from "legal causation" to avert the danger of defendants being exposed to, in the words of [[Benjamin Cardozo|Cardozo, J.]], "liability in an indeterminate amount for an indeterminate time to an indeterminate class".<ref>''Ultramares Corp. v. Touche''(1931) 255 N.Y. 170, 174 N.E. 441</ref> It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is "too remote" (in England) or not a "[[proximate cause]]" (in the US) of another's harm if one would "never reasonably foresee it happening". A "proximate cause" in US terminology (to do with the chain of events between the action and the injury) should not be confused with the "proximity test" under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee an incident, and therefore can not take care to avoid it, nobody could be responsible. For instance, in ''[[Palsgraf v. Long Island Rail Road Co.]],''<ref>''Palsgraf v. Long Island Rail Road Co.'' (1928) 162 N.E. 99</ref> the judge decided that the defendant, a [[railway]], was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform. The scales fell because of a far-away commotion (a train conductor had pushed a passenger holding a box containing an explosive) but it was not clear that what type of commotion caused the scale to fall, either it was the explosion's effect or the confused movement of the terrified people. A train [[Conductor (transportation)|conductor]] had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger, or his package, causing it to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform, which became the cause of commotion on the platform, and as a consequence, the scales fell.{{efn|The plaintiff's physical injuries were minor and more likely caused by a stampede of travelers on the platform rather than the concussion of the exploding fireworks.  These details have not, however, stopped the case from becoming the source of extensive debate in [[United States|American]] tort law.}} Because Palsgraf was hurt by the falling scales, she sued the [[train]] company who employed the conductor for negligence.{{efn|She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."}}

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs.<ref>{{Cite web |title=Palsgraf v Long_Is_RR |url=https://www.nycourts.gov/reporter/archives/palsgraf_lirr.htm |access-date=2024-01-19 |website=www.nycourts.gov}}</ref> Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.

Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in ''[[The Wagon Mound (No. 2)]]''.<ref name= "Wagon Mound #2 PC">{{cite bailii |litigants=[[Overseas Tankship (UK) Ltd v The Miller Steamship Co]] (Wagon Mound No. 2) |year=1966 |court=UKPC |num=10 |format=1 |parallelcite=[1967] [[Appeal Cases Law Reports|AC]] 617; [1967] 2 [[All England Law Reports|All ER]] 709 |courtname=auto |juris=NSW |date=25 May 1966 }}.</ref> The Wagon Mound was a ship in [[Sydney]] harbour. The ship leaked oil creating a slick in part of the harbour.  The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The Privy Council determined that the wharf owner "intervened" in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia the concept of remoteness, or proximity, was tested with the case of ''Jaensch v Coffey''.<ref name="Jaensch v Coffey" /> The wife of a policeman, Vicki Coffey, suffered a nervous shock injury from the aftermath of a motor vehicle collision, although she was not actually at the scene at the time of the collision. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. Here there was sufficient causal proximity. See also ''Kavanagh v Akhtar'',<ref name="Kavanagh v Akhtar">{{cite AustLII|NSWSC|779|1998|litigants=Kavanagh v Akhtar |parallelcite= |courtname=auto |date=}}.</ref> ''Imbree v McNeilly'',<ref name="Imbree v McNeilly">{{cite AustLII|HCA|40|2008|litigants=Imbree v McNeilly |parallelcite= |courtname=auto |date=}}.</ref> and ''Tame v NSW''.<ref name="Tame HCA"/>

===Injury===
Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury.

As a general rule, plaintiffs in tort litigation can only recover damages if they prove both that they suffered a loss and that the loss was reasonably foreseeable to the defendant. When damages are not a necessary element of a tort claim, a plaintiff may prevail without demonstrating a financial injury, potentially recovering [[nominal damages]] along with any other remedy available under the law.<ref>{{cite journal |last1=Blanchard |first1=Sadie |title=Nominal Damages as Vindication |journal=George Mason Law Review |date=2022 |volume=30 |page=228}}</ref>

Negligence is different in that the plaintiff must ordinarily prove a pecuniary loss in order to recover damages. In some cases, such as defamation per se, damages may be presumed. Recovery for non-pecuniary losses, such as emotional injury, are normally recoverable only if the plaintiff has also proved a pecuniary loss.<ref>{{cite journal |last1=Carr |first1=Christopher |title=Measuring the Pecuniary Loss in Damages for Personal |journal=The Modern Law Review |date=May 1974 |volume=37 |issue=3 |page=341}}</ref> Examples of pecuniary loss include medical bills that result from an injury, or repair costs or loss of income due to property damage.

The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury<ref>See, eg, {{cite AustLII|HCA|8|1977|litigants=Sharman v Evans |parallelcite=(1977) 138 [[Commonwealth Law Reports|CLR]] 563 |courtname=auto |date=}}.</ref>), or reputational (in a [[defamation]] case).

In English law, the right to claim for purely [[economic loss]] is limited to a number of "special" and "clearly defined circumstances", often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

[[Negligent infliction of emotional distress|Emotional distress]] has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.

A claimant who has suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of [[California]] allowed recovery for emotional distress alone{{spaced ndash}}even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.<ref>See ''[[Dillon v. Legg]]'', 68 Cal. 2d 728 (1968) and ''[[Molien]] v. [[Kaiser Foundation|Kaiser Foundation Hospitals]]'', 27 Cal. 3d 916 (1980).</ref>

The eggshell skull rule is a legal doctrine upheld in some tort law systems, which holds that a tortfeasor is liable for the full extent of damage caused, even where the extent of the damage is due to the unforeseen frailty of the claimant. The eggshell skull rule was recently maintained in Australia in the case of ''Kavanagh v Akhtar''.<ref name="Kavanagh v Akhtar"/>

=== Special doctrines ===
''[[Res ipsa loquitur]]'': Latin for "the thing speaks for itself". To prove negligence under this doctrine the plaintiff must prove (1) the incident does not usually happen without negligence, (2) the object that caused the harm was under the defendant's control and (3) the plaintiff did not contribute to the cause.<ref>{{Cite web|url=https://www.law.cornell.edu/wex/res_ipsa_loquitur|title=Res Ipsa Loquitur|website=LII / Legal Information Institute|language=en|access-date=12 April 2020}}</ref>

Negligence ''per se'' comes down to whether or not a party violated a standard in law meant to protect the public such as a building code or speed limit.<ref>{{Cite web|url=https://www.law.cornell.edu/wex/negligence_per_se|title=negligence per se|website=LII / Legal Information Institute|language=en|access-date=12 April 2020}}</ref>