A Brief Outline of Negligence Law

The concept of a crime is relatively easy to understand but what is negligence?

Negligence as a concept has been around since humans first began living in community. That some of us can be thoughtless, neglectful or careless from time to time really goes without saying! In Ancient Rome, the word neglere was used to indicate such neglectful action – or inaction – by a person.

Negligence lawyers across the ages have seen the remarkable ways that humans can be thoughtless with each other or cause harm through a moment of inattention.

A careless lot

So it appears that as people we do our fair share of dropping things, running in to things, neglecting others and generally failing to take care. But how does the law respond to this?

The system of English Common Law, which was adopted by Australia in colonial times, ultimately recognised situations of negligence as ones to which the court could intervene.

Complex questions

There is more to it than the thoughtlessness of one person causing harm to another, which would result in potentially endless legal actions. The law of negligence is a more complex beast. There are four key elements that are now required by courts across the Commonwealth. Duty of care, breach of duty, cause, and loss are the core questions that dwell inside modern negligence law.

The duty to care?

When do we owe a duty to take care? An early English legal case – Donoghue v Stevenson – is still used to teach law students the world, on the idea of duty. In essence, a decomposing snail was found in a bottle of ginger beer by horrified consumer May Donoghue. While she hadn’t bought the actual bottle herself (so wasn’t connected by contract to the manufacturer), the court found that the manufacturer nevertheless owed a duty of care to her. One judge, Lord Atkin, even dug into the Bible to announce that ‘love thy neighbour’ also means not doing them any harm!

A breach of the duty

Another key element required for a negligence finding is whether or not a breach of the general duty of care has occurred. This part gets down to analysing what the ‘duty of care’ actually involves. The court will ask itself “how a reasonable person”/doctor/driver etc meant to conduct themselves in order to avoid harming a patient/person/other road user.

Sometimes the act by one person and the harm caused to another are so freakishly separate that nobody could have reasonably foreseen the chance that harm would occur and therefore a reasonable person is not required to take the steps to avoid it. This was argued in an English case where a cricket ball travelled a bizarrely long distance to thump a hapless woman.

So, if a person acts with all due care and caution but an extremely remote repercussion arises, it might well be said that a breach of the duty of care has not occurred.

What’s the cause of the damage?

In negligence law, parties can often lock horns over the issue of what damage a negligent act has caused and what extent any losses are the responsibility of the negligent person. The “flow on” effect of any actions can almost be endless. The negligent person will only be responsible for damage which is not considered by the Court to be too “remote” from the negligent act. This is a situation where the expert advice of compensation lawyers is key, because it is at the point of ‘causation’ that the negligent often fight hardest.

Feeling the loss

The ultimate outcome of any negligence claims is obtaining financial compensation for loss and damages. Not just a part of Australian law, the idea of reparations for wrongdoing is of course a universal aspect of justice.

In negligence law, the goal is to restore people back to the way things were if the careless act in question had not happened. This isn’t always easy – as well as physical or financial loss, emotional distress can also arise. How your life might be restored after a negligent incident is an important question for your negligence lawyers.

Learning from history

As negligence law has developed, one thing has become clear – it will always be in a state of growth and change as The Courts respond to modern concepts, ways of life and advances in medicine and technology.