NEGLIGENCE

Negligence is  conduct which falls below the reasonable standard of behaviour established by law. A person has acted negligently if he fails to exercise the care that a reasonably prudent person would exercise under similar circumstances. The idea behind imposing liability on persons for negligence is that people should exercise reasonable care, whenever they do (or don’t do) something by taking into account the potential harm that they might forseeably cause to other people or property around them.

To prove negligence you must be able to demonstrate the following:

• Firstly you must show that one person owes a duty of care towards another person. The nature of that duty depends upon the relationship between the parties. Typically most people owe an ordinary duty of care toward another people (for example when you put on your car a bike rack with a bike you will owe a duty of care to all other people that you will fit the bike rack and the bike securely). However the law can impose a different standard of duty of care on different individuals. For example professional people are considered by law as experts in their field of expertise and practice area and therefore have imposed on them a higher degree of duty of care. A child is considered immature and imposed a lower degree of duty of care towards another person.
• Secondly it must be shown that there was a breach of that duty of care. In other words someone failed to do what they should have done under the circumstances in the light of the type of duty of care owed in that circumstance i.e if you own a shop and allow the floor to be wet, you ought to foresee that someone may slip on that wet floor.
• Thirdly, it must be shown that the breach of the standard of care was the direct legal cause of the damage suffered or injury sustained. This means that the injury was the foreseeable consequence of a breach of duty of care.
• Lastly, damages must have been resulted from all of the above.

Defences to negligence claim

There are several full or partial defences available to negligence which include :

• That there was no negligence
• That the damage caused was not foreseeable
• That the damage did not directly cause the loss
• That there has been no loss
• If the defendant can show that there is a voluntary assumption of risk of harm by the claimant to the defendant then the claimant will not recover any damages.
• If the defendant can show that the claimant has suffered injury partly due to his, her or its own negligent act than the claimant would be liable for contributory negligence and will not be awarded full damages.

Example of negligence

Mr Roberts is the owner and manager of a sports equipment shop. He’s in business for 10 years and has spacious premises with friendly and experienced sales executives. The sports shop has an amazing interior and been situated in the heart of the city. Every evening for 10 years, Roberts has had his cleaning team carry out cleaning of floors and removing dust from the premises after the shop closed.

Before carrying out cleaning, the cleaning team member always put up yellow warning sign boards indicating “wet floors” at each of the entrances of the sales floor. The cleaning team also ensured that the front door is locked so that no customer would enter the shop when the floor is wet. In last 10 years, a few members of the public have entered the shop but none had ever slipped or injured themselves due to the wet floor.

Roberts has recently employed several new customer service assistants including Greg in his sports shop. One evening, the cleaning team forget to put out the warning signs about the wet floor as they thought that the main shop doors were locked. Greg was just leaving after his day shift and was not aware of the wet floor. Greg fell on the wet floor and broke his leg.

In this example, it is very clear that Mr Roberts was liable for negligence. Firstly Mr Roberts owes a duty of care to Greg to make sure his working premises are safe. This duty of care is established by law as they had an employer-employee relationship.

Secondly Mr Roberts breached the duty of care as any reasonable employer in his place would explain to all new employees including Greg about the cleaning activities in the shop and ensuring that the cleaning team displays warning signs about wet floors. Thus Mr Roberts did not take all precautionary steps that a reasonable and prudent employer and manager would have taken.

Thirdly it is foreseeable that Greg’s injuries would result from his slipping on a wet floor. The direct reason for his injury is wet floor.

Finally Greg suffered a broken leg to which he is entitled to be compensated for in the form of damages. Any losses Greg has suffered as result of the fall (eg taxi fares, loss of work, pain and suffering, hospital fees etc) can be claimed from Mr Roberts.