What is Negligence?

A good question. Have you ever used your phone when driving?   Not bothered to check the food was within use by date before cooking and serving it?  Wrongly diagnosed a patient? Have you failed to follow Health and Safety Laws at work?  Driven too fast or caused an accident? Not maintained your property, leaving it a danger to people? Are you a carer who has not looked after your patient properly?

Negligence in law is a TORT (actionable civil* wrong) and is an act or omission done or not done, by someone who has a duty of care to another. Not only that, the duty has to have been breached by the act or omission and damage/loss must have been caused.

Negligence can *be civil or criminal.  However, the criteria are still the same.

There must be a duty of care

That duty must have been breached

Damage (Injury/loss) must be caused by the breach

And it must be foreseeable damage.

The tort of Negligence on its own, was introduced into English Law by Lord Atkin in the case of Donoghue v Stevenson (1932) so it is a comparatively new facet of the Common Law.  Nevertheless, it has also become a very important.  Prior to this there was a very limited use of negligence in law but it had to be connected to a contract

Donoghue v Stevenson 1932.

Mrs Donoghue and her friend went into a Café in Paisley and the friend ordered two bottles of pop, for Mrs Donoghue a bottle of ginger beer. The bottle was dark in colour. Mrs Donoghue had one drink and as she poured another, into her glass fell a decomposing snail.  She suffered shock and gastric upset.

Was anyone to blame for what happened? Her friend for buying it? The café owner, Mr Minghella for selling it? Miss Mrs Donoghue herself for not noticing? What about the manufacturer? Had she got any claim against anyone for her injuries?

She could not sue the Café owner as she had to right in law i.e. no contract as her fiend had bought the goods.  Her friend could not sue as she was not the injured party. However, she definitely felt that someone should be held blameworthy.  She took the matter as far as possible to the highest court the (then) House of Lords.

The principle of “you must not injure your neighbour” came into being. Lord Atkin explained who “your neighbour” is and that is “someone who is so closely and directly affected by my act that I ought reasonably to have them in my contemplation….”   Which means to us that we all must take reasonable care to avoid injuring anyone likely to be harmed if we do not take care.  This is the Duty of Care we all have.  More so for certain categories of person. For example, the medical profession, manufacturers of goods, (this includes the makers of food and drink), bank officials.

It was held that the manufacturer of the ginger beer, Stevenson’s, had a duty of care to anyone who drank their bottled goods. So, step one was established in Mrs Donoghue’s case.

The “Neighbour principle” means there has to be sufficiency of proximity between the two parties. If there is no proximity then a duty of care will not be found.

It is not enough to establish that there is a duty of care (which will be done on the facts of each case) but it has to be proved that duty has been breached.

Had it been breached in Donoghue v Stevenson? Yes, by allowing a snail to get into the bottle in the first place. Step two established.    Mrs Donoghue, like any other person wishing to sue in negligence, was still not home and dry.

Step three?  Was any damage caused? (Known as causation) “Damage” includes injury.  Was she injured? Yes she was. She was quite severely ill.   Note: not all injuries might be held to be a valid argument.

The final hurdle is to establish whether it was reasonably foreseeable that the tortfeasor would be aware of the likelihood of damage being caused to the other party by their careless actions.  In this case the careless action was allowing the snail to get into the bottle during manufacture.

Mrs Donoghue won her case and the precedent was set.   The neighbour principle and Negligence has been further developed since 1932 in many cases. Originally the principle only applied to physical injuries, including nervous shock but it was extended to financial loss in the case of Hedley Byrne v Heller in 1964. A bank gave a misstatement as too the viability of one company to another and as a result the second company lost a lot of money.

The Law of Negligence is now a vast (and lucrative for some) area in our modern system.  This has been a mere toe dipped in the water!