The tort of Negligence, by Simon Reeves LLB/LLM


In order to succeed in a negligence claim a plaintiff must establish the existence of the duty of care owned to him by the wrongdoer. In short, whether a duty of care is owed is determined on the basis of whether it is fair, just and reasonable to impose it. Proximity and policy are the two headings under which the courts have determined this ultimate question. Imposition of duty requires a degree of proximity between a plaintiff and defendant. Proximity requires a plaintiff to be vulnerable in relation to the defendant, or reasonably reliant on the defendant to take care to prevent the type of loss complained of.



Quite apart from establishing the existence of the duty of care owned to him a plaintiff must establish that a duty of care was breached. This is because action negligence will not be successful unless there is evidence of such a breach.


Link between Negligence and the Breach

The third requirement is proving the fact of the damage being caused by the wrongdoer’s negligence which is a question of fact in every case. Whereas it does not have to be the sole cause of damage occurring it has to be a direct consequence of the negligence.


Multiple Defendants

In a situation involving multi wrongdoers what has to be generally proved is the fact that such wrongdoers did in fact contribute to the harm. If this is the case then they are said to be jointly and severally liable for it. The victim can sue all of them or any one of them. If only wrongdoer is being sued then this wrongdoer generally may apply to the court to join the others as third parties and seek contribution from them, which means that damages may be apportioned.


Mitigation of damage

Although there is no legal duty on the plaintiff to act reasonably upon discovering their loss it is desirable for a plaintiff to take all reasonable steps to mitigate loss. Plaintiff cannot recover damage for any loss which could have been avoided but which, through unreasonable action, was not avoided. Where a plaintiff does take reasonable steps to mitigate the loss, a plaintiff can recover for the loss incurred in doing so. Where a plaintiff is successful in mitigating any loss, a wrongdoer is entitled to the benefit of plaintiff’s actions and liable only for the loss as lessened.


Negligence and professionals

In reality many of today’s negligence cases concern negligence on the part of professionals such as accountants, architects, engineers, insurance brokers, lawyers, and other professionals as well as the members of business community.


Negligence and corporate entities with a complex structure

Today’s business is such as construction is usually carried out by integrated economic organizations which lack a single legal entity but rather consist of a number of different legal units. For instance in many situations involving commercial building contracts the work is carried out by a main contractor who hires a number of subcontractors to carry out certain aspects of work. Suing such complex organizations for the acts of negligence is difficult in reality as it goes against the principle of individual legal responsibility i.e. being held legally responsible for you own acts and not the acts of another. Therefore generally a contractor will not be liable for the torts or breaches of contract of the others. However from real practical point of view those who will be liable might not have finances to satisfy the judgment. However there are legal avenues to overcome such difficulties in order to ascribe the liability to an appropriate individual or legal entity such as contract, ownership and authority.


Negligence and officials

It is a generally accepted principle of common law that officials of any level do not have any more immunity from liability for negligence or for any tort than a private person. The fact of the matter is: the test for determining whether a public servant or a public authority is liable in negligence is the same test which applies to a private person. There are some general restrictions however. For instance negligence claims against officials might be non justicable because they rely on performance of exclusively public law functions by officials. Also some common law jurisdictions have upheld that no duty of care can be derived from the statutory framework in respect of acts or omissions done by officials in exercising such duties. There are few other exceptions.


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Reeves/Duhovnikoff & Associates Ltd. 2017