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Negligence: Main ideas

Read more about the main ideas related to Negligence, from duty of care to trial procedure, with our dedicated analysis and example essays here.

Duty of care

This is the first stage of a negligence claim which shows that the claimant and defendant had a legal relationship at the time of the accident or incident that caused loss, damage or injury to the claimant.

There are three stages to prove a duty:

o Proximity (or closeness) of relationship – this is a legal relationship rather than a family relationship.

o That the loss damage or injury was foreseeable – how likely the loss damage or injury is.

o That it is fair just and reasonable to impose a duty of care and that there is no public policy reason not to impose a duty.

The courts have, over the years, established which groups of people owe a duty of care to which other groups. However the categories of negligence are never closed and the courts are prepared to consider new situations as they arise.

Breach of duty

Once a duty of care has been established it is for the claimant to prove that the defendant fell below the standard of the reasonable person in that position. This is an objective test. In Blyth v Birmingham Waterworks it was said “ Negligence is the omission to do something which the reasonable person would do or doing something that the reasonable person would not do”.

Various factors will be taken into account:

o The degree of risk – the higher the risk the greater precautions should be taken.

o The vulnerability of the claimant – the more vulnerable the greater the care that should be available.

o Any experience of the claimant.

o Professionals – doctors, lawyers, surveyors - will be judged according to what others in the profession would have done.

o The cost of taking precautions - the greater the cost the fewer precautions may be allowed.

o The social benefit.

o The age of the claimant - a child will be judged at the standard of children of the same age.

Loss or damage

The third stage is to show that the loss or damage suffered by the claimant was caused by the defendant’s act or omission.

The ‘but for test’ asks ‘but for the defendant’s breach of duty would the loss or damage have occurred?’

Finally it has to be shown that the damage or injury was not too remote a consequence of the defendant’s act or omission. It is the general type of loss, damage or injury that has to be foreseeable – not the exact injury suffered. As part of this the defendant has to accept that if the claimant has a weakness (known as an eggshell skull) then the defendant will be liable for all the injury suffered (this is similar to ‘take your victim as you find them in criminal law)

Pre-trial procedure in civil claims

The claimant will issue a claim form which shows the area of law the claim is based on and the amount of damages claimed.

The defendant can file a defence arguing that he is not responsible at all, that he is partly responsible, or admitting full responsibility.

If the claim is defended the court will allocate the case to a relevant track depending on the amount claimed. The tracks set out time limits and procedures the case will follow.

Claims under £10,000 (£1,000 in personal injury cases) are allocated to the Small Claims track and will be dealt with by a district judge in the Small Claims Court. Claims between £10,000 and £25,000 will be dealt with in the Fast-track and usually heard in the County Court by a Circuit Judge. Claims over £25,000 are multi-track and can be heard in the County Court or the High Court, Queens Bench Division depending on their complexity. Claims over £50,000 will generally be heard in the High Court QBD.

Trial procedure in civil claims

A civil trial will be decided by a judge alone. There is no jury. The judge will read the legal arguments and witness statements before the trial and there is less emphasis on oral evidence as compared to a criminal trial. The claimant and defendant can be represented by lawyers though there is now a greater emphasis on the parties being unrepresented.

The trial will consist of legal arguments and submissions with some consideration of evidence. The judge will decide liability – who wins – on the balance of probabilities. The judge will also decide the amount of damages and how this should be paid – either in one lump sum or by instalments. The judge will also decide who pays the costs of the case – the usual rule is that the winner pays the loser’s legal costs.

Appeals against the judge’s decision can be based on liability or the amount of damages payable or both.

Calculating damages

There are two main categories of civil damages:

o Special damages – these are to cover the period between the accident and the trial. They are designed to compensate the victim for actual losses suffered – e.g. loss of wages, repairs to any vehicle damaged, hire costs of any replacement vehicle and medical expenses for essential treatment.

o General damages – these are to cover the period from the trial date for the remainder of the time the claimant suffers from the injury.

They are divided into:

o Pain and suffering as a direct result of the accident.

o Loss of amenity – to compensate the victim for what he cannot do after the accident e.g. play sport.

o Future loss of earnings (of the job one was doing before the accident).

o Future medical expenses for any necessary treatment and e.g. adaptations to house or car.

There is a general principal that the claimant must mitigate his loss – to keep it to a minimum.

The damages may be paid by one lump sum or by instalments over a period.