Negligence is unreasonable behaviour which causes proximate harm. While this definition appears simple it contains several key questions that need to be answered when determining whether a person can sue or be sued for negligence.
UNREASONABLE BEHAVIOUR
Unreasonable behaviour involves acts that do not meet the standard of a reasonable person in the circumstances. Courts imagine a ‘reasonable man/woman’ and ask the question of how he/she would have acted. If the Defendant’s conduct falls below this bar or standard of care then that person can be held liable for the negative results of their conduct.
CAUSATION AND REMOTENESS
The next question the court considers is causation; did the Defendant’s actions cause harm to the Plaintiff? Here the issue of remoteness comes into consideration. It may well be that the Defendant’s conduct led through a series of events to the harm suffered by the Plaintiff, but if the cause is so remote as to make the resulting damage beyond what could have been reasonably foreseen in the circumstances the court will not hold the Defendant liable.
DUTY OF CARE
The issue of how far the obligation to act reasonably extends is the substance of the courts consideration under the duty of care. As a general rule the courts have adopted the neighbour principle which states that a duty of care extends to all those that the Defendant could have reasonably been expected to anticipate being affected by his or her actions. The Defendant has a duty to these people not to take actions that will cause them harm.
For policy reasons the duty of care has been limited in certain circumstances. For example, the duty of care imposed on a local government or municipality is limited in some jurisdictions to operational but not to policy decisions unless these decisions are made in bad faith. This was a choice made by the courts in lieu of the political nature of the decisions made by local governments and the courts unwillingness to constrain those decisions by threats of lawsuits.
DAMAGES
The final issue in a negligence claim proving the harmful effects or damages that were caused by the Defendant’s actions. A common illustration of this issue is motor vehicle accidents where a plaintiff’s negligent driving can cause anything from minor property damage to major injury and death. The burden is on the Plaintiff to show the extent of the damages suffered and the value in dollars and cents of those damages. Damages fall under different heads depending on what is being claimed. In some jurisdictions (like Canada) a ‘cap’ has been imposed on damages claimed for pain and suffering (non-pecuniary damages). Again, this has been done for policy reasons as courts have acknowledged that no amount of money can fully compensate for some injuries and that a limit needs to be in place to stop judges, and particularly juries, from imposing astronomical figures based on what is essentially an arbitrary decision. The ‘cap’ is obviously an arbitrary number in itself but it is at least constant for everyone that comes before the courts.
Even in jurisdictions with a ‘cap’ on damages, negligence law has altered our society in that we are now required to carry insurance over every aspect of our lives. In theory the tort of negligence was meant to put the burden of negligent behaviour back on the person acting negligently. In fact through the insurance industry the tort of negligence disperses the burden and cost of negligent acts away from the relevant parties and onto society as a whole. For better or for worse with the rise of the tort of negligence we have had to accept that we will all pay to ensure that those that are harmed by their unreasonable neighbours are duly compensated.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
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