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Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up") is a legal concept in the common law legal systems mostly applied in tort cases to achieve money compensation (damages) for physical and mental injuries (not accidents).

Negligence is a type of tort or delict (also known as a civil wrong). "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. In the words of Lord Blackburn,

"those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision."

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.


Elements of negligence claims

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let's assume there's five elements to a proving a particular tort. If the plaintiff proves four out of five elements, the plaintiff loses the case and walks away from court with nothing.

Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model," writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."[1]


Duty of care

A decomposed snail in Scotland was the humble beginning of the modern English law of negligence

The case of Donoghue v. Stevenson[2] [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. Plaintiff Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Stevenson in Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed snail. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Andrew Smith.

In his ruling, justice Lord MacMillan defined a new category of tort, (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

In England the more recent case of Caparo v. Dickman [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

Breach of duty

In Bolton v. Stone the English court was sympathetic to cricket players

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not restricted to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone[3], a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health[4], the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.

For the rule in the U.S., see: Calculus of negligence

Factual causation

For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.

Legal causation or remoteness

Negligence can lead to this sort of accident - a train wreck at Gare Montparnasse in 1895.

Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an indeterminate class."[5] It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?

For instance, in Palsgraf v. Long Island Rail Road Co.[6] the judge decided that the defendant, a railway was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell.[7] Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.[8].

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cordozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.

Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in the Wagon Mound No. 2[9]. The Wagon Mound was a ship in Sydney harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf.

The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey.[10] The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.


Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss. It means something more that pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.

Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.

The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.

The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury), or reputational (in a defamation case).

In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.

A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.[11]


Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person." The test is self-explanatory: would a reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

Types of Damage: * Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include: lost wages, medical bills, and damage to property such as your car. * General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car accident. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages, sometimes the symbolic $1 you see the jury award in movies.

  • Punitive damages - Punitive damages are to punish a defendant, they are NOT to compensate plaintiffs in negligence cases. Therefore, punitive damages are NOT obtainable in a negligence case. Punitive damages are awardable only in cases where a defendant has been found "guilty" of intentional, reckless or malicious wrongdoing, such as fraud, defamation or false imprisonment. The easy way to remember this concept is to think about a car accident where there is physical injury. If the defendant driver was negligent (say by running a red light) then punitive damages cannot be sought. But if the defendant driver was drunk then punitive damages could be awarded.

Procedure in the United States

The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.[12].

The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the finder of fact to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.

On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his case.

See also


  1. ^ Deakin, Tort Law, 218
  2. ^ Donoghue v. Stevenson [1932] AC 532
  3. ^ Bolton v. Stone, [1951] A.C. 850
  4. ^ Roe v Minister of Health (1954) 2 AER 131
  5. ^ Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441
  6. ^ Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
  7. ^ Interestingly, the plaintiff's physical injuries were minor and more likely caused by a stampede of travelers on the platform rather than the concussion of the exploding fireworks. These details have not, however, stopped the case from becoming the source of extensive debate in American tort law.
  8. ^ She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."
  9. ^ Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966] 2 All E.R. 709
  10. ^ Jaensch v. Coffee (1984) 155 CLR 578
  11. ^ See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
  12. ^ The breadth of negligence is often associated with an "in terrorem effect"


  • Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0199257116.  

External links

  • Britannica 1911's account of negligence: an interesting historical read, preceding the era of Buick Motor and Donoghue v. Stevenson.

1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

NEGLIGENCE (Lat. negligentia, from negligere, to neglect, literally "not to pick up"), a ground of civil law liability, and in criminal law an element in several offences, the most conspicuous of which is manslaughter by negligence. In order to establish civil liability on the ground of negligence, three things must be proved - a duty to take care, the absence of due care, and actual damage caused directly by the absence of due care. Mere carelessness gives no right of action unless the person injured can show that there was a legal duty to take care. The duty may be to the public in general, on the ground that any person who does anything which may involve risk to the public is bound to take due care to avoid the risk. For instance, in the words of Lord Blackburn, "those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision." Where a special duty to an individual is alleged, the duty must rest on a contract or undertaking or some similar specific ground. Thus, where a surveyor has carelessly given incorrect progress certificates, and a mortgagee who has had no contractual relation with the surveyor has advanced money on the faith of the certificate, the surveyor is not liable to the mortgagee in an action of negligence; because he owed no duty to the mortgagee to be careful. When a duty to take care is established, the degree of care required is now determined by a well-ascertained standard. This standard is the amount of care which would be exercised in the circumstances by an "average reasonable man." This objective standard excludes consideration of the capacity or state of mind of the particular individual. It also gets rid of the old distinctions between "gross," "ordinary" and "slight" negligence, though no doubt the degree of care required varies with the circumstances of the case. The application of such a standard is a task for which a jury is a very appropriate tribunal. In fact the decision of the question whether there has been a want of due care is left almost unreservedly to the jury. There is this amount of control, that if the judge is of opinion that the evidence, if believed, cannot possibly be regarded as showing want of due care, or in technical language that there is "no evidence of negligence," it is his duty to withdraw the case from the jury and give judgment for the defendant. Unless the judge decides that there is no duty to take care, or that there is no evidence of want of care, the question of negligence or no negligence is wholly for the jury.

Ordinarily a man is responsible only for his own negligence and for that of his servants and agents acting within the scope of their authority. For the acts or defaults of the servants of an independent contractor he is not liable. But in certain cases a stricter obligation is imposed on him by law. The occupier of premises is under a duty to all persons who go there on business which concerns him to see that the premises are in a reasonably safe condition so far as reasonable care and skill can make them so. Thus he cannot release himself by employing an independent contractor to maintain or repair the premises. The effect of this doctrine is that the occupier may be liable if it can be shown that the independent contractor or his servant has been guilty of a want of due care. A similar obligation has been enforced in the case of a wreck stranded in a navigable river, and the owner was held liable for damage caused by the carelessness of the servant of an independent contractor who had undertaken to light the wreck. So too any person who undertakes a work likely to cause danger if due care is not taken is liable for damage caused by the carelessness of the servant of an independent contractor, so long as the carelessness is not casual or collateral to the servant's employment.

In an action of negligence a familiar defence is "contributory negligence." This is a rather misleading expression. It is not a sufficient defence to show that the plaintiff was negligent, and that his negligence contributed to the harm complained of. The plaintiff's negligence will not disentitle him to recover unless it is such that without it the misfortune would not have happened, nor if the defendant might by the exercise of reasonable care on his part have avoided the consequences of the plaintiff's negligence. The shortest and plainest way of expressing this rule is, that the plaintiff's negligence is no defence unless it was the proximate or decisive cause of the injury. There was an attempt in recent times to extend this doctrine so as to make the contributory negligence of a third person a defence, in cases where the plaintiff, though not negligent himself, was travelling in a vehicle or vessel managed by the negligent third person, or was otherwise under his control. In such circumstances it was said that the plaintiff was "identified" with the third person. (Waite v. North-Eastern Ry. Co., 1858, E. B. & E., 719). This case, in the Exchequer Chamber, was an action on behalf of an infant by his next friend. The infant, which was five years of age, was with its grandmother, who took a half-ticket for the child and a ticket for herself to travel by the defendants' line; as they were crossing the railway to be ready for the train the child was injured by a passing train. The jury found that the defendants were guilty of negligence, and that the grandmother was guilty of negligence which contributed to the accident, while there was no negligence of the infant plaintiff. A verdict was entered for the plaintiff, but in the Queen's Bench the verdict was entered for the defendants, without calling on them to argue, on the ground that the infant was identified with its grandmother. But the case of the "Bernina," decided in 1888, where a passenger and an engineer on board the "Bushire" were killed in a collision between the "Bernina" and the "Bushire" caused by fault in both ships, but without fault on the part of the deceased, exploded this supposed doctrine, and made it clear that the defence of contributory negligence holds good only when the defendant contends and proves that the plaintiff was injured by his own carelessness.

The American law of negligence is founded on the English common law; but the decisions in different states have occasionally contradicted English decisions, and also one another.

See T. Beven, Negligence in Law, 3rd ed., 1908; Shearman and Redfield, The Law of Negligence (New York), Thompson, Commentaries on Negligence (Indianapolis). (A. LL. D.)

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Simple English

In law, negligence is a kind of lawsuit that people and organizations can bring if they are hurt. It is a kind of tort. The law calls someone negligent if he hurts someone else, or someone else's property, because he was not careful enough.


A Negligence Case

In a case about legal negligence, the person who brings the lawsuit is called the plaintiff and the person who is being sued is called the defendant. The law about negligence is different in many places (or jurisdictions), but for the plaintiff to win, he or she usually has to prove at least four things:

  • the defendant had a duty to behave in a certain way;
  • the defendant breached that duty;
  • the plaintiff was damaged, or harmed; and
  • the breach was the cause of the plaintiff's harm.


The defendant's duty is what the law says that he or she has to do. Usually, the law says that people have to be reasonable. That means they have to be careful, use good judgment, and not be unfair to other people. In some cases, the law tells people that they have special duties. In other cases, the law says that people have no duties at all. For example, in most places that use the common law, a person has no legal duty to rescue another person from harm, even if the rescue is very easy and does not cost anything or put anyone else in danger.


When people do not follow their duty, the law says that they breach their duty.


A plaintiff can usually bring a lawsuit only if he or she has been hurt, or has some other legal harm. The law tells people what kinds of injuries people can sue about.


A plaintiff can usually sue a defendant only if that defendant was the one who hurt the plaintiff. In many cases, it is easy to figure out who hurt someone. But sometimes people get hurt in ways that nobody expects. For example, a defendant might be driving while drunk, and he might hit an electric pole. The electric pole could fall down and cause a neighborhood to lose electric power. As a result, a person two miles away might trip and fall in the dark. The law will decide whether the drunk driver caused the person to trip and fall.

Outside the law

The word negligence is sometimes used outside the law in a similar way. It means that someone has not been careful enough.


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