We all know some general meaning of negligence. It is thoughtlessness, careless conduct, a failure to take proper care. Wikipedia says it is “a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.” But, how does that become a legal liability to pay compensation?
There seems to be some anxiety about it because, on occasions, I am asked (by well-informed, experienced business people…. just out of interest... ), ‘What is negligence?’.
Negligence as a ‘tort’ or ‘civil wrong’
The most usual definition of negligence is that it is conduct, or a failure to act, that breaches a duty to take care.
It breaks down into several elements, all of which must exist to give rise to a liability to pay compensation.
- There must be a duty owed.
- The action – or lack of action - needs to fall below the standard expected of a reasonably competent equivalent person. This is the breach of duty.
- And that breach must cause loss; whether physical damage to a person or property or even in some cases purely financial loss.
Negligence can be something that occurs in everyday life, such as a Council that fails to repair the pavement properly, resulting in an injury to a pedestrian.
In these everyday situations it can sometimes be difficult to know whether a duty of care was owed. The test is, was it foreseeable that the injured person could be injured, and, is it fair, just and reasonable to impose a duty? That is not always easy to interpret. If you are running a fairground and inviting people onto your rides it is clear that if you do not maintain the ride they could be injured and few would argue that it would be fair just and reasonable to make a fairground ride owner liable if he fails to maintain his equipment in accordance with manufacturer’s standards. Yet the court reports are absolutely crammed with less clear cut scenarios in which judges have struggled to decide whether a duty of care should have been owed without opening the ‘floodgates’ to thousands of similar claims.
Or negligence can arise where someone is professing particular skill, such as a doctor, a teacher, a vet, an accountant or a solicitor, to name a few.
The same elements set out above apply to prove negligence when a special relationship exists, but usually a duty of care is easier to show. If you go to a specialist for specific advice, it is almost certainly the case that when they give that advice they will owe a duty to take care with it.
However, the duty can be limited by exclusions on what advice is being given. Just because an accountant agrees to advise on one aspect of the company’s tax affairs it may not be prepared to accept a duty of care in all other areas.
Sometimes people refer to ‘gross negligence’. This is not a concept of any real relevance in general negligence law. Either there was a breach of duty that caused loss (and gives rise to a right to damages) or there is not. The damages are not higher if the negligence is particularly clear. If the work is really bad then it is likely that it will be easier to show that the duty to take care was breached, but the idea of negligence being very severe has little more relevance.
Breach of statutory duty
Negligent acts can also be a breach of a statutory duty. The government controls many aspects of citizens’ lives and conduct in Acts of Parliament or Regulations. If you do not comply with any legislation or regulations that apply to you or your business then you may become liable for breach of statutory duty as well as negligence.
Breach of statutory duty is, though, often easier to prove than negligence generally because the legislation or regulations impose defined duties of care and set out how those duty can be discharged. A good example is the regulations that set out how workplaces should be made safe, for example on construction sites. If appropriate scaffolding is not in place in accordance with the regulations to prevent a fall, then any person injured by a fall from height is likely to be able to establish fairly easily that there was a breach of statutory duty, without having to establish from scratch that a duty of care was owed, what that duty was and how it was breached. The regulations pretty much do that for them. The old-fashioned concept of ’negligence’ has, in some areas of life, been made redundant by regulations like these.
If you contributed to your injury or loss then the compensation payable by the person who committed the wrong is liable to be reduced. This can even be to zero.
For example, if you are injured in a car accident but were not wearing a seat belt you might be held partly to blame for your injuries. If an architect designs fire precautions in a factory badly, but a fire spreads quickly because materials were stored hazardously, the architect may not be found fully to blame for the fire damage. If an employee’s fraud was not detected by company auditors, but the company directors failed to enforce basic fraud safeguards, the auditors may not be fully responsible for the stolen cash.
It can also be said that an injured party accepted the risks and, in that situation, the wrongdoer might be excused from liability.
This is the very shortest possible summary of what negligence is. To deal with the huge variety of complex situations that occur in real life is impossible here, but these are the essential headlines. Some sensible benchmarks to avoid being on the wrong side of a negligence claim are:
- Always try to maintain the reasonable standards applicable in your business sector
- Keep fully up to date with relevant legislation and regulations
- Monitor your liability insurances to make sure they are up to date and relevant
- If you supply goods and services think about excluding or limiting certain liabilities in your contracts.