Negligence

Negligence – The 5 Elements You Need to win Your Claim

Clever Content

  • What is negligence?
  • Duty of care
  • Examples of negligence
  • The 5 elements required to prove negligence
  • The Burden of Proof

What is negligence?

The legal definition of negligence is ‘The failure to give someone or something enough care or attention’ www.oxfordlearnersdictionaries.com

Basically, negligence occurs when a person unintentionally fails to take proper care when doing something and someone or something suffers as a result. This means that some ‘accidents’ can be due to negligence rather than just chance or bad luck.

Before we continue it is important to understand the duty of care we have to others.


Duty of care

Everyone has a duty to look after the well-being of others. It is an obligation placed on people to act towards others in a way that will not cause them injury or harm.

The duty of care for health workers in Australia is described as ‘an obligation to avoid acts or omissions, which could be reasonably foreseen to injure or harm other people’. https://www1.health.gov.au
This means that we have a responsibility to take ‘reasonable’ care of ourselves and others. This leads to cases relating to negligence often revolving around the question of what is, and what is not, ‘reasonable’?

Decisions of whether something is reasonable or not is based on whether an ‘average person’ would have been expected to foresee the consequences of their action or inaction. This would depend on the circumstances of the case and the perception of the people involved and is decided by the courts.

Note: That you can be negligent for doing something that unintentionally causes harm and also for ‘not’ doing something. For example: Not taking adequate steps to warn someone of a potential hazard.


Examples of negligence

  • A house owner who does not repair a faulty roof tile and it falls and injures a guest.
  • A driver who drives through a red light and causes an accident.
  • A shop owner does not place a “Caution: Wet Floor” sign over a spill and someone slips over.
  • A doctor may be held liable for misdiagnosis if they did not follow accepted medical practices and, as a result they make a misdiagnosis.

Negligence cases vary between countries and states but they all rely on the same basic 5 elements which required the plaintiff to show that the defendant acted negligently in some way and that they suffered as a result.


The 5 elements required in a claim of negligence.

If you want to make a claim of negligence you must show that someone understood that there was a risk associated with an action and that they did not act to mitigate (reduce) that risk.

The 5 elements required to prove negligence are:

  1. Duty
  2. Breach
  3. Cause in fact / Actual Cause
  4. Proximate cause
  5. Harm / Damages

Duty

The plaintiff must prove that the defendant owed them a duty of care not to cause them harm. They will have to show that the defendant had an obligation to act in a way to protect the plaintiff.


Breach

The plaintiff must prove that the defendant's breach of duty resulted in the injury being claimed and that the defendant failed in some way to provide reasonable care.


Cause In Fact / Actual Cause.

Did the actions or inactions of the defendant cause the injury of the plaintiff?

The plaintiff must show that the negligence of the defendant lead to the negative consequence they suffered. To do this they must prove that if it wasn’t for the defendant’s actions or inactions, they would not have been harmed.


Proximate cause.

The plaintiff must prove that there is a direct link between the negligent act and the injury they suffered and that the defendant could have taken steps to prevent the incident from happening.


Harm / Damages

Finally, the plaintiff must prove that they suffered loss or injury as a result of the defendant's negligence. This could be physical injuries or damage to property.


The Burden of Proof

It is the responsibility of the plaintiff to prove negligence by demonstrating that the defendant was negligent based on the evidence they present.

When damages are present, they will be usually be resolved through financial compensation.


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Additional reading (external link): www.findlaw.com


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