The Tort of Negligence

The tort of negligence is a term that escapes complete definition. Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury. It includes carelessness and lack of foresight; however the significance of negligence in tort is much broader. In law, it is defined as the "omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do." (Alderson, 1856) [Blyth v Birmingham Waterworks Co.] [1856] in this essay I will discuss the essential ingredients that make up the tort of negligence.

Generally speaking there is no legal duty to avoid causing harm to others. For duty of care to make a case in court there are underlying principles, there are: that there is a relationship of such proximity between the parties, that it is reasonably foreseeable that a breach of duty of care will occasion loss to the party to whom the duty is owed; and, that it is reasonable and just that the duty should be imposed. In certain circumstances the courts may say there is a legal duty of care to avoid causing hurt to others in specific circumstances, i.e. not everyone is who is 'careless' will be liable in negligence from a legal point of view. In the case of King -v- Phillips (1952) the defendant ran over a child's bicycle, the child screamed. The plaintiff, the child's Mother, heard the scream and looked out the window. She saw the crushed bicycle but not her child; she suffered shock as a result even though her child was not hurt. She sued the defendant, and lost the case as the defendant could not reasonably foresee that his carelessness would affect people in surrounding houses.

The law of negligence is concerned with compensating the plaintiff for injury caused by the defendant. Before any plaintiff can be compensated he must establish that the plaintiff legally and actually caused the defendants injury. As a result of this factual causation requires the plaintiff to specifically establish that the defendant was the cause of his/her injuries. A way of establishing the above is the "But For" test. This states that "If it can be established that the damage would not have occurred but for the defendant's negligence, then the defendant will be said to have factually caused the injury" (Corbett, 2004.) In Kenny -v- O' Rourke (1972) I.R. 339 the plaintiff was a painter who fell off a ladder given to him by the defendant and injured as a result. The defendant was found not guilty as he was not aware of any defect with the ladder, and as the "But For" test states the defendant did not factually caused the injury due to his own negligence, as the plaintiff admitted during the case he fell from the ladder as he leaned over too far.

To succeed in negligence it must be proved that personal physical injury or damage to property was caused by the breach of a legal duty of care. Damages are not recoverable for grief or sorrow alone. The courts may award damages for nervous shock. (Doolan, 2007) In Curran -v- Cadbury Ltd. (2000) a worker turned on a machine while a colleague was inside the machine repairing it, she suffered a psychiatric illness as a result, because she believed she had killed her colleague. She was rewarded damages. In the case of Fletcher -v- Commissions of Public Works (2003) an employee had a psychiatric illness resulting from an irrational fear of contracting disease following the negligent to health risks by an employer. The Supreme Court did reward the employee damages.

Many circumstances cause loss, in most cases one party will be at fault. However, it does often occur that both parties have caused some fault/contributed to the loss. When both parties are at fault, each party may recover some compensation according to the Civil Liability Act 1961. The amount recoverable by each party will depend on their contribution to the negligence, i.e. how much of the damage/loss is their fault. The onus of establishing contributory negligence lies on the defendant. In Sinnott -v- Quinnsworth Ltd (1984),