How to deal with someone’s negligence in common-law
Author: Maria Demetriou
Date of Publication: 15/11/2022
In our everyday life, it is impossible to avoid interaction with other people. But, during that constant social contact, it is very common to experience the consequences of someone’s careless or negligent conduct towards you. For that reason, it is important to know how you can file a lawsuit and seek compensation for your damage due to their negligence.
What is negligence in common tort law?
In common-law, negligence means that a person -the defendant in legal terms- failed to behave in a manner reasonably expected. This is according to the proper standard of care towards another person -the plaintiff in legal terms. As a result, this careless behavior caused harm, injury or loss to the plaintiff. Thus, the latter is able to file a lawsuit against the defendant for damages on the legal basis of the tort of negligence.
How can you establish someone’s negligence?
As the person who suffered damage from the defendant’s negligence, you have to prove this negligence, by establishing four elements:
Duty of care
Breach of duty of care
Duty of care
First of all, the wrongdoer must owe a duty of care towards the injured person. In particular, as the plaintiff, you have to prove that the defendant has the legal duty to take reasonable care of you or of the group of people you belong to.
The common-law case law has established certain categories of recognized duty of care for future reference, such as:
Teachers to their students
Employers to their employees
Professionals to their clients/customers eg. doctors to their patients
Landlords/tenants to the visitors of their property
Carriers/transporters to their passengers
If your case doesn’t belong to the above fixed categories, then you need to satisfy a triple test:
The damage you suffered was foreseeable
There was sufficient proximity between you and the wrongdoer
It is fair and reasonable to impose a duty of care to the specific facts of your case.
A common example that satisfies these three conditions is the duty of care of a vehicle driver that collides with another vehicle driver or with other road users. It is important to note that you can establish duty of care for:
Defendant’s omissions, but only if:
a) There is a recognized duty of care or
b) The omission amounts to a previous dangerous act of the defendant or of a third party, which the defendant controls.
Another important type of duty of care is the assumption of responsibility. For that, you need to prove three elements:
The defendant has specific knowledge/capabilities.
The defendant took the responsibility to apply this knowledge for your own interest.
You, as a plaintiff, relied on them.
Breach of duty of care
So far, you have established the duty of care of the defendant towards you. Now you have to prove its breach. Particularly, you need to demonstrate that the defendant’s behavior -action or omission- failed to meet the standard of reasonable care towards you. You should calculate that standard according to what you expect, objectively, from a reasonable person. Regard that reasonable person in the same circumstances -time and place- and in the same position -physically, mentally and professionally- as the defendant. Nevertheless, sensitivities or specific capabilities of the defendant don’t count for that standard. In other words, if that reasonable person hadn’t had the same conduct as the defendant, then the defendant would have breached their duty of care.
After the breach, the next step is to prove the actual damage you suffered, because of the negligent behavior of the defendant. Otherwise, you won’t be able to establish the tort of negligence.
You should keep in mind the certain categories of damage that can establish negligence:
Mental injury/nervous shock that accompanies physical injury and it is subsequent to it
Mental injury without physical harm in cases of reasonable fear due to immediate danger
Recognized psychiatric disorder
Harm to real or moveable property
Harm to intellectual property
Harm to reputation
On the contrary you can’t establish negligence for:
Pure economic loss (except in cases of assumption of responsibility)
Fear and anxiety, without physical injury
It isn’t enough to prove your damage. You, also, need to demonstrate that your damage happened because the defendant breached their duty. The test for that is well known as “but-for”. Meaning that if it wasn’t for the defendant’s breach of duty, the damage wouldn’t have happened with a possibility of up to 50%. Moreover, the damage occurred as a result of the breach must be reasonably foreseeable, even though its extent or the way it occurred might be unexpected. Under that context, sensitivities of the plaintiff that invoked a larger damage cannot minimize the responsibility of the defendant.
All in all, after you manage to prove the four essential elements, then you have established the common-law tort of negligence. Afterwards, it’s up to the defendant to face your lawsuit, calling upon defenses. If the defendant fails to convince the court, then you will be awarded damages for your loss/injury due to their negligence.
Alcock v CC South Yorkshire  1 AC 310
Caparo Industry PLC v Dickman  2 AC 605
Hedley Byrne & Co Ltd v. Heller & Partners  2 All ER 575
Rothwell v Chemical and Insulating Co  UKHL 39