©The Star (Used by permission)
Articles of Law
By Bhag Singh
Just what is negligence?
ORDINARILY, negligence means the failure to give enough care or attention. Negligence is a part of the branch of the law known as torts. Tort has been described by Sir Charles James Watkin Williams, an English jurist in Gray v North–Eastern Rail. Co, as “that great principle of the common law which declares that it is your duty to use and exercise your own rights so as not to cause injury to other people”.
What must a person show to indicate that negligence is made out?
As said in Arab–Malaysian Finance Bhd v Steven Phoa Cheng Loon: “To make out a case against a defendant in the tort of negligence, a plaintiff must establish four ingredients. First, he must show that he was owed a duty by the defendant to take reasonable care. Second, that the defendant breached that duty. Third, that the resultant breach caused that harm in question; and fourth that he (the plaintiff) suffered damage that was not too remote.”
ORDINARILY, negligence means the failure to give enough care or attention. Negligence is a part of the branch of the law known as torts. Tort has been described by Sir Charles James Watkin Williams, an English jurist in Gray v North–Eastern Rail. Co, as “that great principle of the common law which declares that it is your duty to use and exercise your own rights so as not to cause injury to other people”.
What must a person show to indicate that negligence is made out?
As said in Arab–Malaysian Finance Bhd v Steven Phoa Cheng Loon: “To make out a case against a defendant in the tort of negligence, a plaintiff must establish four ingredients. First, he must show that he was owed a duty by the defendant to take reasonable care. Second, that the defendant breached that duty. Third, that the resultant breach caused that harm in question; and fourth that he (the plaintiff) suffered damage that was not too remote.”
The starting point in all cases where there is no contractual relations between the parties is stated by Lord Atkin in Donoghue v Stevenson: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act ...”
Otherwise, causation is the relation of cause and effect. Actus reus is so defined that the occurrence of stated consequences is required, for example, where the actus reus of the accused caused a death, the conduct of the accused which is alleged to have been the cause of those consequence has to be proved.
A plaintiff can recover only that loss which a defendant could reasonably foresee would enure to the victim of the tort. So, the test is one of reasonable foreseeability.
What precisely must be foreseeable by a negligent defendant? For the authorities, the answer seems to be that it is harm. Once the kind of harm is foreseeable, then the tortfeasor (wrongdoer) is liable to the full extent of it.
In Dauglhty v Turner Manufacturing Co Ltd, the plaintiff failed because injury to the workman by splashing was foreseeable but not injury by explosion. By contrast, in Hughes v Lord Advocate, it was a reasonably foreseeable danger that a child could be injured by burns but not through an explosion.
In order to discharge the burden of proof placed upon him, it is usually necessary for the plaintiff to prove specific acts or omissions on the part of the defendant that qualify as negligent conduct.
Sometimes, however, the circumstances are such that the court will be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what he did or did not do. Thus, for example, the presence of an unlighted vehicle on the road at night will, if there is no other lighting, be regarded as prima facie evidence of negligence on the part of the driver.
Res ipsa loquitur
This position has, it is said, been complicated and obscured by the use in many cases of the maxim res ipsa loquitur. As Morris L. J. has said, the maxim “possesses no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin.”
When used on behalf of a plaintiff, it is generally a short way of saying: “I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant ...”
The principal requirement is that the mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story must be clear and unambiguous. If it may tell one or half a dozen stories, the maxim is inapplicable.
This single requirement is, however, commonly divided into two on the basis of Erle C.J.’s famous statement in Scott v London and St Katherine Docks Co: “There must be reasonable evidence of negligence.”
But where something is shown to be under the management of the defendant or his servants, and the accident would not have happened if proper care had been exercised, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
Thus it will be seen that various aspects are involved in a consideration of whether negligence has occurred which leads to liability being placed on a defendant.
Otherwise, causation is the relation of cause and effect. Actus reus is so defined that the occurrence of stated consequences is required, for example, where the actus reus of the accused caused a death, the conduct of the accused which is alleged to have been the cause of those consequence has to be proved.
A plaintiff can recover only that loss which a defendant could reasonably foresee would enure to the victim of the tort. So, the test is one of reasonable foreseeability.
What precisely must be foreseeable by a negligent defendant? For the authorities, the answer seems to be that it is harm. Once the kind of harm is foreseeable, then the tortfeasor (wrongdoer) is liable to the full extent of it.
In Dauglhty v Turner Manufacturing Co Ltd, the plaintiff failed because injury to the workman by splashing was foreseeable but not injury by explosion. By contrast, in Hughes v Lord Advocate, it was a reasonably foreseeable danger that a child could be injured by burns but not through an explosion.
In order to discharge the burden of proof placed upon him, it is usually necessary for the plaintiff to prove specific acts or omissions on the part of the defendant that qualify as negligent conduct.
Sometimes, however, the circumstances are such that the court will be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what he did or did not do. Thus, for example, the presence of an unlighted vehicle on the road at night will, if there is no other lighting, be regarded as prima facie evidence of negligence on the part of the driver.
Res ipsa loquitur
This position has, it is said, been complicated and obscured by the use in many cases of the maxim res ipsa loquitur. As Morris L. J. has said, the maxim “possesses no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin.”
When used on behalf of a plaintiff, it is generally a short way of saying: “I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant ...”
The principal requirement is that the mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story must be clear and unambiguous. If it may tell one or half a dozen stories, the maxim is inapplicable.
This single requirement is, however, commonly divided into two on the basis of Erle C.J.’s famous statement in Scott v London and St Katherine Docks Co: “There must be reasonable evidence of negligence.”
But where something is shown to be under the management of the defendant or his servants, and the accident would not have happened if proper care had been exercised, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
Thus it will be seen that various aspects are involved in a consideration of whether negligence has occurred which leads to liability being placed on a defendant.