The modern law of negligence

Having bought herself a cheap windsurfer, Ursula decided to teach herself to windsurf on a lake near her home. After several hours' practice, she began to tire and decided to have one last attempt at crossing the lake. She failed to notice Vera, who was fishing from a boat on the lake. Unfortunately, Ursula crashed into the boat, which capsized, and Vera lost her expensive fishing equipment in the lake.

The law allows people to claim compensation in the civil courts if they themselves have been injured, their reputation damaged or property harmed. It is the mens rea part of a crime which, if occurring simultaneously with the actus reus, gives rise to criminal liability; both elements are necessary under the criminal common law to sustain a guilty conviction. It is not necessary in every instance to prove malice within the civil courts but, within the law of torts, the courts are more concerned with the effects of injurious conduct than with the motives than inspired it. Negligent torts are the most common type of torts. Negligent torts are not deliberate, but arise when someone fails to act as a reasonable person to someone he/she owes a duty to, resulting in an injury.

Negligence can be summed up as one's failure to exercise reasonable care. More specifically, a negligent act occurs when there is failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not do under like circumstances. In order for a negligence claim to succeed three tests must be satisfied: 1. that the defendant owed them a duty of care; 2. that the defendant was in breach of that duty; and 3. that the claimant suffered damage caused by the breach of duty, which was not too remote.

The modern law of negligence is based upon the decision in Donoghue v. Stevenson [1932]. Mrs Donoghue was unable to sue in contract for the harm she suffered after consuming ginger beer with a snail in it because she had not bought the drink from the manufacturer but from a retailer and was therefore not able to bring an action in contract. The House of Lords tried the case and Lord Atkin set out a test for where a person would owe a duty of care, this is known as the Neighbour test. In short this test qualifies that the duty of care is established by putting in the defendant's place a hypothetical 'reasonable man' and deciding whether the reasonable man would have foreseen the likelihood or probability of injury, not its mere possibility. The test is objective and not subjective, and the effect of its application is that a person is not liable for every injury that results from his carelessness.

Many cases have been decided subsequent to Donoghue v. Stevenson. However, most of these precedents have been surpassed by Caparo Industries v. Dickman [1990]. This replaced the neighbour test with a three part test which questions: 1. whether the consequences of the defendant's act were reasonably foreseeable; 2. whether there is a relationship of proximity between the parties, for instance, a legal relationship or physical closeness; and 3. whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty.

When considering the breach of duty the courts are concerned with how much care the defendant must take. Only if the risk was foreseeable and avoidable in a reasonable sense and appropriate measures had not been taken, could one say there had been a breach. The basis of this concept is upon whether the standard of action taken was the standard expected of an ordinary reasonable man. Only if the defendant is a child, a learner or a professional will special circumstances apply. In all other cases, the court will consider relevant factors in deciding whether there has been a breach of duty.

The magnitude of the risk will be assessed on the likelihood of harm occurring. There was a low risk in Bolton v. Stone [1951]. Miss Stone, standing outside her house, was stuck by a cricket ball hit from a nearby ground. The case was rejected by the House of Lords because the ball had travelled so far, and such a thing had happened only about six times in thirty years, the risk therefore was slight. Although the seriousness of the consequence is not to be argued with the probability of such an injury occurring any time soon, the cost practicality of guarding against the risk was so great that a reasonable cricket club would not have taken any further precautions to prevent such a freak occurrence.

In Watt v. Herefordshire City Council [1954] Denning LJ said one must balance the risk against the end to be achieved. If the actions of the defendant served a socially useful purpose then he may be just in taking greater risks. A fire brigade was notified of a serious road accident: a person was trapped and heavy lifting equipment was urgently required. As it happened the lorry that would usually carry the equipment was engaged in other work so the fire officer ordered it to be loaded into an ordinary lorry. On the way to the incident the equipment slipped and a fireman was injured. He sued his employers and failed. Although the risk could have been foreseen in cases of emergency the standard of care demanded is adjusted accordingly.

It is necessary for the plaintiff to show that he has suffered some loss. In this sense the law of torts differs from contract wherein a breach in contract with no loss will at least give an action for nominal damages. This will not be the case within the law of torts and therefore not within the law of negligence. Unless the plaintiff can prove that he/she has suffered some loss, whether physical, financial or otherwise, then a claim for negligence within the law of torts will not succeed.