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Negligence Claims – How do you prove fault?

What Is Negligence?

Negligence occurs when a person fails to use reasonable care to protect others from harm. When that negligence results in an injury to another person, then a claim for negligence arises against the person who caused the harm.

The law of negligence addresses situations where the negligent (careless) behaviour of one party causes harm to another party. The victim (plaintiff) may rely on this area of law to pursue legal action against the tortfeasor (defendant).

To sue for negligent behaviour, there are three main elements to be satisfied.

 

  1. Duty of care

The plaintiff has to show that the defendant owes a duty of care to him. In order to establish that there is a duty of care owed, the plaintiff must show:

A. Factual foreseeability:

This refers to whether it was possible for the Defendant to foresee that his actions would result in harm being inflicted on the plaintiff. This is a relatively low threshold and is often easily fulfilled.

B. Proximity:

Proximity, in the law of negligence, unlike its literal definition, refers to whether there was a sufficient connection between the plaintiff and the defendant to envisage such a duty of care owed. In determining whether such legal proximity exists, a variety of factors are considered. They are (but not limited to):

  • Physical proximity (actual distance between plaintiff and defendant when the harm was suffered)
  • Circumstantial proximity (relationship by virtue of the title held by both parties)
  • Causal proximity (extent the defendant’s action is related to the negligent act and harm suffered)
  • Voluntary assumption and reliance

In exceptional cases, do note that the Court may refuse to make a finding on the duty of care owed if such a finding is contrary to public policy.

  1. Standard of care

Standard of care refers to the amount of precaution taken by the defendant to prevent the harm suffered by the plaintiff. In order to have an action against the defendant, the plaintiff must first establish the standard of care that the defendant was required to exercise and prove that the defendant has fallen short of such a standard.

  1. Causation

Despite proving that a duty of care is owed, and the standard of care was breached, the defendant can only be held liable if the plaintiff proves that there is a nexus between the negligent act and the harm suffered.

The test for causation is whether plaintiff would have suffered harm but for the defendant’s act (the “but for test”).

However, do note there are exceptions to this rule. If there are unforeseeable intervening events that exacerbated the harm suffered, the defendant may not be liable for harm caused after the intervening event.

 

Defences

Illegality – if the plaintiff suffered damage as a result of participating in illegality, the defendant may not be liable for the harm caused by his negligence.

Consent – If the plaintiff consents to the risk of harm that is associated with the particular conduct of the defendant, the plaintiff may be barred from succeeding in an action in negligence against the plaintiff.

Contributory negligence – Aside from the defendant’s conduct, if the harm suffered can be proven to be a result of the plaintiff’s action/ inaction, the total compensation due to the plaintiff may be reduced.

We are experienced in holding those who are negligent responsible for their actions.

Speak to our Lawyers today.

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact us at:  info@silvesterlegal.com.

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