Theory on Negligence

In order to provide fair justice for the mankind, different sets of law have been
emerged in the history of the world. Without going further in the history it would be
better to define what law is? Vermeesch and Lindgren defines law as “those rules
established by parliaments and/ or the courts which are recognized and enforced
(with physical force if necessary) by courts of law”. (1978, p.2). There are two types
of laws, contract law and torts law. However, due to the nature of the problem in the
case given, negligence would be discussed.

Negligence is a type of tort or delict (also known as a civil wrong). However,

the concept is sometimes used in criminal law as well. A rough synonym for
"negligence" is "carelessness". However “W Claydon & R Kinshela Revised by
B.J.Moore” challenge negligence definition as “doing something which a reasonable
person would not do, or the failure or neglect to do something which a reasonable
and prudent person would do” (1999, p.40).

Negligence is a failure to exercise appropriate and or ethical ruled care

expected to be exercised amongst specified circumstances. The tort law, also known
as negligence involves harm caused by failing to act as a form of carelessness
plausibly with extenuating circumstances. The core concept of negligence is that
people should exercise reasonable care in their actions, by thaking account of the
potential harm that they might foreseeably cause to other people or property.

Someone who suffers loss caused by another’s negligence may be able to

sue for damages to compensate for their harm. Such loss may include physical injury,
harm to property, psychiatric illness, or economic loss. The law on negligence may
be assessed in general terms according to a five-part model which includes the
assessment of duty, breach actual cause, proximate cause and damages.
Elements of negligence claim.

Some things must be established by anyone who wants to sue in negligence. These
are what called as the ‘elements’ of negligence. Most jurisdictions say that these are
four elements to a negligence action;

 Duty: the defendant has a duty to others, including the plaintiff, to exercise
reasonable care
 Breach: the defendant breaches that duty through an act or culpable omission.
 Damages: as a result of that act or omission, the plaintiff suffers an injury, and
 Causation: the injury to the plaintiff is a reasonably foreseeable consequence
of the defendant’s act or omission.

Some jurisdictions narrow the definition down to three elements: duty, breach and
proximately caused harm. Some jurisdictions recognize five elements: duty, breach,
actual case, proximate cause, and damages.
An Overview of Action in Negligence

The following diagram clearly elaborates these essentials and defences.

Source: Roger (Vickery Wayne Pendleton 5th edition) (p.87)

In the hypothetical case given, it can be said that there is a negligence act involve.
Therefore, focus is only at ‘acts’ of negligence rather than negligence advice. All the
essential ought to be proven on the balance of probability.