Negligence

See also: calculus of negligence

Causation

(3) The causation of negligence is the third critical element of the lawsuit.
Both actual cause and proximate cause are considered.
Actual cause asks the question of whether the person being sued,
the defendant, was the actual cause of injuries sustained by the person
initiating the lawsuit, the plaintiff.
Proximate cause looks at the issue of foreseeability.
When considering the event that has happened, it is asked whether or not
the injuries sustained were foreseeable or too remotely connected to
the incident to even consider.

Damage

(4) Plaintiffs must have suffered damage - either physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss consequent on a personal injury) - from the negligent act if they are to have a cause of action against the tort feasor (note, however, under English law at least, and derivatives thereto, no cause of action arises save for in a number of 'special' and clearly defined circumstances where the damage is purely financial).

Remoteness

(5) Only reasonably foreseeable damage may be recovered by an action in negligence. This means that at the time the tort feasor committed the negligent act, it must have been reasonably foreseeable that damage of the same kind as the plaintiff suffered would ensue from it. The extent of the damage need not be foreseeable; and it matters not what the plaintiff in fact foresaw - the test is a purely objective one.

Defences

(6) Notwithstanding that the plaintiff can prove elements (1) - (5) above, the tort feasor may have a complete or partial defence to the tort. Where the defence is complete, the plaintiff will be denied any remedy - i.e. damages (on damages see below) - by the Court. Where the defence is partial, the plaintiff's award of damages will be reduced to the extent of the partial defence.

A common complete defence is where the tort feasor proves that the plaintiff consented either expressly or impliedly to the risk of damage. Another is where tort feasors can show that by a notice, sign or otherwise, they have validly excluded liability for the damage the plaintiff is seeking a remedy for.

Contributory negligence is an absolute defense under the common law. This is where the tort feasor proves that the plaintiff acted negligently and that this negligence contributed to the damage the plaintiff suffered from the tort feasor's negligent act. A simple example is where D's negligent driving caused P damage, but P's negligent driving also was a cause of that damage in part, in that, but for P's failure, his injuries would not have taken place or would not have been as severe as they in fact were. Where contributory negligence was proved, under the common law, the plaintiff would recover nothing. This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing of a more egregiously responsible defendant. In most common law jurisdictions it has been replaced judicially or legislatively by the doctrine of comparative negligence (often still referred to as contributory negligence), under which the court will reduce the plaintiff's damages by the degree to which the plaintiff's own negligence contributed to his loss.

Damages

(7) Where plaintiffs prove (1) - (5) above, and the tort feasor cannot prove a complete defence, they may recover damages (money) for their loss. It is the court that decides the amount of damages to be awarded.

Tortious damages are, in general, compensatory and not punitive in nature. This means that the award decided upon should be reflective only of the plaintiffs' actual loss - it should aim to compensate them fully for it, but not to punish the tortfeasor. The award should be sufficient so as to put the plaintiffs back in the position they were before the tort was committed, but must not go any further, otherwise the plaintiffs would actually benefit from the tort.

The plaintiff's award of damages may be comprised of the following heads of damage:

In certain limited cases the court may depart from the compensatory principle relayed above and award punitive (also known as exemplary) damages in addition to general and special damages. This is usually done where the tort feasor intentionally committed the tort for economic gain. The tort feasor is then duly punished in this way in the hope that doing so will deter similar actions in the future both by the defendant and others.

Where the plaintiff's general or special damages are negligible or wholly unquantifiable the court may award nominal damages.

Legal procedures in negligence lawsuits

While most lawsuits are settled when a negligence lawsuit goes to trial, the judge will determine what the defendant's duty was to the plaintiff as a matter of law using the standard of reasonableness.
In the United States, if it is questionable what a reasonable person would do, a jury picked by the adversaries (plaintiff and defendant) will consider the facts and render a decision as well as determine the quantum of damages.

Sometimes the trier of fact will be the judge — this has been the case in England since the 19th century and is generally the case in the other Commonwealth countries.

Procedures and law in civil law jurisdictions

There are some differences in the law of negligence in civil law jurisdictions, but the basic rules above are also applied in these delict cases. In civil law jurisdictions the procedure is more akin to an investigation with investigative judges will interview all parties and witnesses and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy.

Leading cases

See also