Negligence

2

Introduction to the tort of negligence

2.1 Introduction

Consider the following examples: ➔ A cyclist is knocked down and killed by a speeding car. ➔ A junior doctor mistakenly injects their patient with the wrong antibiotic causing permanent paralysis. ➔ An elderly woman breaks her hip after tripping over a raised paving slab on the pavement outside her local shop. ➔ A young child falls down a manhole left uncovered by Post Office employees earlier in the day and seriously injures their leg. In each of these examples the accident or injury suffered appears to be the fault (at least in part) of someone other than the injured party. The speeding motorist, the junior doctor, the local authority and the Post Office employees have all been, in some way, negligent, in the sense of having acted carelessly or neglectfully. They may therefore be liable for damages in the tort of negligence—defined by Percy H Winfield as ‘the breach of a legal duty to take care by an inadvertent act or omission that injures another’.1 It is important to distinguish at the outset between negligence in the former everyday or colloquial sense—whereby it is synonymous with carelessness or neglect—and negligence in the legal sense—that is, the type of liability which the law attaches to people who fall below a standard of care imposed by the law. Not all actions which are negligent in the first sense will be negligent in the second. It is only sometimes that the law requires us to act carefully and, therefore, it is important always to bear in mind that a person is not automatically liable for all (or indeed any) of the consequences of their negligent (in the sense of careless) actions. (Moreover, as we shall see, a person

1. Percy H Winfield ‘The History of Negligence in the Law of Torts’ (1926a) 42 Law Quarterly Review 184. You should note now, however, that the tort of negligence is not limited to acts of inadvertence. Deliberate infl iction of harms can also give rise to liability in the tort...