Negligence

Carelessness vs Negligence

Often, the line between carelessness and negligence becomes blurred, making it difficult to determine whether an act was due to carelessness or willful negligence.

• If a housewife spills milk while boiling it on a gas stove, it is considered carelessness.
• A doctor who improperly stitches a patient's wound is considered negligent.
• A factory owner may be accused of negligence if a workplace accident occurs involving machinery and workers.

Carelessness can be synonymous with negligence, as it often involves being inattentive, unwary, unmindful, forgetful, or inconsiderate. Examples of careless behavior:

• Not paying attention in class, leading to careless mistakes.
• Breaking valuable items due to inattentiveness.
• Overlooking important details in a project.
• Disregarding safety precautions.

Examples of carelessness in daily life:

• Don't be careless when crossing the road.
• Don't be careless with your toys; keep them in one place.
• It's important not to be careless with fire.
• Make sure you don't do your schoolwork carelessly.
• Remind your friends not to be careless with their belongings.
• Always be careful and not careless when using sharp objects.
• Remember to be careful, not careless when playing near water.

Negligence

Negligence is the failure to perform a legal duty, resulting in damage or inconvenience to another party. It refers to conduct that falls below the standard of behavior expected in society or established by law.

Elements of Negligence Claims

To successfully pursue a claim of negligence through a lawsuit, a plaintiff must establish the following elements:

1. Duty: The defendant has a duty to others, including the plaintiff, to exercise reasonable care.
2. Breach: The defendant breaches that duty through an act or culpable omission.
3. Damage: As a result of that act or omission, the plaintiff suffers an injury.
4. Causation: The injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.

Duty of Care

According to Lord Atkin, "the principle of duty of care refers to a claimant who is closely and directly affected by the conduct of the defendant."

• Drivers owe a duty of care to others to avoid causing harm.
• Texting while driving breaches the duty of care, as it increases the risk of accidents.
• A manufacturer must ensure their products do not cause harm to consumers.

Donoghue v. Stevenson

The landmark case of Donoghue v. Stevenson established the principle of duty of care in tort law.

• May Donoghue visited a café and was served a ginger beer.
• She discovered a decomposed snail in her drink, leading to illness.
• She sued the manufacturer, establishing that a duty of care exists between producers and consumers.

Had it been May's friend, rather than May herself, who was served with snail-tainted ginger beer, the world would probably have heard nothing of it. The friend could have sued Mr. Minghella, and, because there was a contract of sale between them, Mr. Minghella would probably have had no defence.

Since May had no contract with anyone, she would have to prove negligence if she were to recover. The only person she could sue for negligence was David Stevenson.

May learned all this from a remarkable Glasgow solicitor and city councillor, Mr. Walter Leechman, who issued her writ against Mr. Stevenson. In due course Stevenson's counsel moved the Court of Session to dismiss the claim, on the ground that it disclosed no cause of action. The motion failed at first before the Lord Ordinary, Lord Moncrieff, but succeeded 3-1 in the Second Division. The majority of the Scottish appeal judges followed a recent decision of their own in two cases brought by plaintiffs who claimed to have found a mouse in a bottle of ginger beer:
Mullen v. A.G. Barr & Co.; McGowan v. A.G. Barr & Co. The majority declared that the only difference between those cases and May was the difference between a rodent and a gastropod, and that this, according to the law of Scotland, amounted to no difference at all. The manufacturer of such products, they held, owed no duty of care to an ultimate consumer unless the consumer had a contract with the manufacturer requiring such care — a most unlikely situation.

It was against this decision that May sought a relief before "His Majesty the King in his Court of Parliament."
Walter Leechman's firm had acted for the unsuccessful pursuers in the mouse cases, but also that he caused May writ to be issued less than three weeks after the appeal decision in the mouse cases was handed down. No doubt there was a reason — several come to mind — why the mouse cases could not themselves have gone to the House of Lords. If Mr. Leechman had not had May's case on the back burner, so to speak, who knows for how long the law might have remained as the Court of Session had declared it.

May's journey to that last tribunal was not an easy one. Not only that she had to retain counsel who were willing to act without reward, but also to gain for herself the status of pauper, for there was no way she could have put up security for costs and without such payment, her appeal would be dismissed. She supported with her affidavit in which she swore, "I am very poor. I am not worth five pounds in all the world". She also attached a certificate of poverty signed by the minister and two elders of my church.

On March 17, 1931, May's petition came from committee to the assembled House, consisting of the Lord Chancellor, Lord Sankey, the Duke of Wellington, two bishops, two marquesses, twenty-four earls, sixteen viscounts, and eighty-eight barons, among them Lord Atkin of Aberdovey. In such distinguished company, including many of the greatest names of British history, May was to be declared a pauper, with all the privileges attaching to that status before their Lordships' House. The House of Lords Buckmaster, Atkin, Tomlin, Thankerton, and Macmillan heard May's submissions. May's counsel wisely rested her case on very narrow ground. A manufacturer who puts on the market an article intended for human consumption in a form that precludes the possibility of examination must be liable to the consumer for any damage caused by want of reasonable care to ensure its fitness for consumption.

Mr. Normand, for David Stevenson, laid emphasis on the acquiesce in the law as it had been declared [i.e., in the "mouse" cases] rather than any real misapprehension regarding it." He emphasised that in the ordinary case (which this is) the supplier or manufacturer of an article is under no duty to anyone with whom he is not in contractual relation".  He denied that ginger beer was intrinsically dangerous or that Stevenson knew that the product was dangerous (the two established exceptions for finding a duty of care) and argued that the third exception that May was attempting to introduce had no basis in precedent.
After two days of argument, counsel withdrew and the House took time for consideration.

While Walter Leechman and the counsel May had retained had been contemplating the lamentable state of consumer protection law in Scotland. Lord Atkin's mind had been engaged, at Westminster and at his Welsh seaside home, upon a larger but closely-related theme.

The House of Lords gave judgment on 26 May 1932 after an unusually long delay of over five months since the hearing. The court held by a majority of 3–2 that the case disclosed a cause of action. The majority consisted of Lord Atkin, Lord Thankerton and Lord Macmillan.

The legal basis for the claim now settled, the case was returned to the Court of Session for a hearing scheduled for January 1933. In the hearing, May would have to prove the factual elements of the case that she had claimed, including that there had been a snail in the ginger beer as a result of Stevenson's negligence and that this snail had caused my illness. Meanwhile, Stevenson died on 12 November 1932, aged 69. One year later, Stevenson's executors were listed as third-party defenders to the case. However, the claim was settled out of court in December 1934 for £200 of the £500 originally claimed.

The neighbour principle
In May 1932 the House of Lords delivered its judgment in the case about the presumed snail in the ginger beer bottle with which even non-lawyers are familiar, Donoghue v Stevenson.

One of the five judges, Lord Atkin, formulated what has become known as the neighbour test in this way:
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in books are but instances. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who.then.in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This remains the classic test for liability in negligence. But what was it that inspired Lord Atkin to pen these powerful words and what were the conscious and unconscious influences on him some seventy years ago?

However, the primary outcome of Donoghue, and what it is best known for, is the further development of the neighbour principle by Lord Atkin, who said: 
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question. Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Analysis of Donoghue v Stevenson

• Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a few years previously, Lord Ormidale in Mullen, said, '. . . it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether from contract, there exists a relationship of duty as between the maker and the consumer of the beer.' Thus, the doctrine is based in law and morality.
• The impact of Donoghue on tort law cannot be understated; it was a watershed moment effectively establishing tort as separate from contract law.
• However, it is important to remember that Donoghue was a milestone in a new principle which needed refining, as Lord Reid said, '. . . the well-known passage in Lord Atkin's speech should, I think, be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.'
• The next major development in the 'neighbour principle' came from Hedley Byrne v Heller, which concerned economic loss.
• The locus classicus of the 'neighbour test' is found in another economic loss case called Caparo Industries v Dickman:
  • In addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are:
    • There should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood'.
    • The situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.
• Thus, boiled down, the requirements are: foreseeability, proximity, and fairness (policy considerations). There has been a certain degree of overlap between the requirements, with Lord Hoffman stating that the distinctions between them are 'somewhat porous but they are probably none the worse for that.'
• It was argued unsuccessfully in Mitchell and another v Glasgow City Council that because Caparo was concerned with economic loss, it had little application to personal injury claims; Lord Hope said that, 'the origins of the fair, just and reasonable test show that its utility is not confined to that category.'
• The outcome of Donoghue has reverberated through law as a whole:
  • It essentially birthed a new area of law to the benefit and detriment of some.
  • For example, personal injury law, which is steeped in both statutory duty and the 'neighbour principle'.
  • Indeed, it has grown to the point where there are concerns of an American-style 'compensation culture', best expressed by Lord Hobhouse when he linked it to the restriction of the liberty of individuals: 'the pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.'
• Interestingly, the facts were never tested in Donoghue; we will never know if there was a snail in the bottle.

Later Developments:

• A duty of care is a legal obligation that requires adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others.
• Such duty of care should be legal in nature and not based on moral, ethical, or religious grounds.
• Following are situations where a duty of care exists:
  • There is no liability in negligence unless the claimant establishes both that:
    • They were owed a duty of care by the defendant.
    • There has been a breach of that duty.
  • The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances.