Negligence

The concept of negligence is linked to the obligation of individuals to exercise reasonable care in their actions and to consider foreseeable harm that their conduct might cause to other people or property.

She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle.

Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson.

(As Mrs Donoghue had not herself bought the ginger beer, the doctrine of privity precluded a contractual action against Stevenson).

The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict (the Scots law nearest equivalent of tort).

In England the more recent case of Caparo Industries Plc v Dickman [1990] introduced a "threefold test" for a duty of care.

In Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936).

The defendant who knowingly (subjective, which is totally based on observation and personal prejudice or view) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty.

In Montgomery v Lanarkshire Health Board, the UK Supreme Court (hearing a Scottish delict case) decided that doctors are under a duty to ensure patients are aware of material risks in the treatment they recommend, and to make them aware (if possible) of any other reasonable treatment option[20]—a form of informed consent.

[21] Under Queensland's Civil Liability Act, doctors owe both objective and subjective duties to warn—breach of either is sufficient to satisfy this element in a court of law.

[22] In Donoghue v Stevenson, Lord Macmillan declared that "the categories of negligence are never closed"; and in Dorset Yacht v Home Office it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard.

In Bolton v. Stone (1951),[23] the House of Lords held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct.

Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable.

A 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship).

For instance, in Palsgraf v. Long Island Rail Road Co.[32] the judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander.

The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform.

[a] Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.

In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision.

In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

[41] Negligence per se comes down to whether or not a party violated a standard in law meant to protect the public such as a building code or speed limit.

[42] Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition").

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person".

However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering).

[47] Comparably, the Italian Penal Code [it], enacted on October 19, 1930, specifies in Article 42 that a person can only be punished for a crime if it was committed with intent.

Furthermore, concerning the aggravated or unintended consequences, the perpetrator must have acted with at least a minimal level of negligence, whether advertently or inadvertently.

[50] With regard to negligence, Indian jurisprudence follows the approach stated in Ratanlal & Dhirajlal: The Law of Torts,[51][52] laying down three elements: The Indian approach to professional negligence requires that any skilled task requires a skilled professional.

[61] Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury.

The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy.