Accidents Arising under Tort: Negligence

In one line

Negligence is the failure to take the care a reasonable person would have taken, and it is the liability that most liability insurance exists to answer.

In the wording a student can write in an exam: negligence is a tort consisting of a breach of a legal duty to take care which results in damage, undesired by the defendant, to the claimant; the claimant must prove a duty of care owed to him, a breach of that duty judged by the standard of the reasonable person, and damage caused by the breach which is not too remote; and it is the source of the overwhelming majority of the claims that liability insurance answers.

The duty of care

Facts. A consumer drank ginger beer from an opaque bottle said to contain the remains of a decomposed snail and became ill. She had no contract with the manufacturer. Held. In Donoghue v. Stevenson, [1932] AC 562, the House of Lords held that a manufacturer owes a duty of care to the ultimate consumer. Lord Atkin stated the neighbour principle: one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour, a neighbour being a person so closely and directly affected by one's act that one ought reasonably to have him in contemplation. Why it matters here. It is the foundation of the whole subject. Before it, liability for a defective product ran only along the contract; after it, a duty is owed to strangers, and it is that duty which makes third party liability insurance necessary.

The modern test asks three questions, which an Indian court applies in substance: was the damage reasonably foreseeable; was there proximity between the parties; and is it fair, just and reasonable to impose a duty. The insurer's defence is that the answer to any one of them is no.

And some duties are established and need no argument. A driver owes a duty to other road users; an occupier to lawful visitors; a manufacturer to consumers; an employer to employees; a professional to a client.

Breach: the standard of care

The standard is objective. The defendant is judged by what a reasonable person in his position would have done, not by his own best efforts. Inexperience is no defence, because the learner driver owes the same duty as an experienced one.

Four factors move the standard up or down.

The probability of harm. The greater the likelihood, the more care is required.

The gravity of the harm. A risk of serious injury demands more precaution than a risk of a scratch, and it demands more where the claimant is known to be particularly vulnerable.