Negligence, or carelessness, is a breach of a legal duty of care owed to the Claimant (you) that results in harm to the Claimant, undesired by the Defendant (the person you are suing). For there to be a claim in Negligence, three elements must be met, these are:-
- Duty of care;
- Breach of the Duty of Care; and
- Causation.
Duty of care
It must be proved that Defendant owes you a legal duty to take care. There are established duties, such as duties of care owed by drivers to passengers, doctors to patients, employers to employees and road-users to other road-users. There are also novel duties, which can lead to a duty of care if you establish that there is reasonable foresight of harm to you, there is a sufficiently close relationship between you and the Defendant, and it is fair, just and reasonable to impose this duty. Novel categories include, psychiatric illness, omissions, acts by third parties and public bodies.
Breach of the duty
It must be proved that Defendant is legally at fault for not meeting the standard of care expected of them, which is usually that of a reasonable person. The degree of care expected is determined by looking at the size and likelihood of risk, and the cost and practicality of precautions. The burden of proof rests with you, on a balance of probabilities, usually by relying on witness statements.
If the injury is in connection with an offence that the defendant has been sentenced for then you may be able to rely on the s 11 of the Civil Evidence Act 1968, which states that a Defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceeding to have committed that offence.
Causation
It must be proved that the breach of duty caused you a financial loss. The burden is one you to prove the causal link between the breach and the loss. A useful way of establishing this is to say: but for the Defendant’s breach, would the harm to you have occurred? Furthermore, to prove causation, it is important to show that the damage was reasonably foreseeable, which will hold even if the precise way in which it occurred, or the precise extent of the damage was not foreseeable.
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