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Negligence (Latin negligentia) is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a negligent act or failure to act. 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. The elements of a negligence claim include the duty to act or refrain from action, breach of that duty, actual and proximate cause of harm, and damages. Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. (2026). 9780199257119, Oxford University Press. ISBN 9780199257119
Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. Despite these differences, definitions of what constitutes negligent conduct remain similar.
The case of Donoghue v Stevenson (1932) Donoghue v Stevenson 1932 AC 532 established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, (through the Privy Council), have been adopted throughout the Commonwealth. May Donoghue and her friend were in a café in Paisley. The friend bought Donoghue a ginger beer float. 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 Donoghue had not herself bought the 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). The case proceeded to the House of Lords, where Lord Atkin interpreted the biblical ordinance to "love thy neighbour" as a legal requirement to "not harm thy neighbour". He then went on to define neighbour as "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 that are called in question."
In England the case of Caparo Industries Plc v Dickman (1990) introduced a "threefold test" for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be "fair, just, and reasonable" to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.
In Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936).; . This was a landmark case in the development of the negligence law in Australia..
Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002)... Determining a duty for mental harm has now been subsumed into the Civil Liability Act 2002 in New South Wales.. The application of Part 3 of the Civil Liability Act 2002 (NSW) was demonstrated in Wicks v SRA (NSW); Sheehan v SRA (NSW).;
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There is a reduced threshold for the standard of care owed by children. In the Australian case of McHale v Watson,. McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. The same principle was demonstrated to exist in English law in Mullin v Richards. Mullin v Richards 1998 1 WLR 1304
Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures, such as an obstetrician did not warn a mother of complications arising. 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 (2026). 9780414090408, Sweet & Maxwell. ISBN 9780414090408—a form of informed consent. 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..
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 other words, all members of society have a duty to exercise reasonable care toward others and their property. In Bolton v. Stone (1951), Bolton v. Stone, 1951 A.C. 850 see also . 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. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. 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. As stated in the opinion, "reasonable risk" cannot be judged with the benefit of hindsight. In Roe v Minister of Health, Roe v Minister of Health (1954) 2 AER 131; see also Glasgow Corporation v Muir (1943) 2 AER 44. Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence on the part of medical professionals accused of using contaminated medical jars, since contemporary standards would have indicated only a low possibility of medical jar contamination.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.
The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. 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.
Remoteness takes another form, seen in The Wagon Mound (No. 2).. The Wagon Mound was a ship in Sydney harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The Privy Council determined that the wharf owner "intervened" in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.
In Australia the concept of remoteness, or proximity, was tested with the case of Jaensch v Coffey. The wife of a policeman, Vicki Coffey, suffered a nervous shock injury from the aftermath of a motor vehicle collision, although she was not actually at the scene at the time of the collision. 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. Here there was sufficient causal proximity. See also Kavanagh v Akhtar,. Imbree v McNeilly,. and Tame v NSW.
As a general rule, plaintiffs in tort litigation can only recover damages if they prove both that they suffered a loss and that the loss was reasonably foreseeable to the defendant. When damages are not a necessary element of a tort claim, a plaintiff may prevail without demonstrating a financial injury, potentially recovering nominal damages along with any other remedy available under the law.
Negligence is different in that the plaintiff must ordinarily prove a pecuniary loss in order to recover damages. In some cases, such as defamation per se, damages may be presumed. Recovery for non-pecuniary losses, such as emotional injury, are normally recoverable only if the plaintiff has also proved a pecuniary loss. Examples of pecuniary loss include medical bills that result from an injury, or repair costs or loss of income due to property damage.
The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injurySee, eg, .), or reputational (in a defamation case).
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.
Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.
A claimant who has suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress aloneeven in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
The eggshell skull rule is a legal doctrine upheld in some tort law systems, which holds that a tortfeasor is liable for the full extent of damage caused, even where the extent of the damage is due to the unforeseen frailty of the claimant. The eggshell skull rule was recently maintained in Australia in the case of Kavanagh v Akhtar.
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.
One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person". Blyth v Birmingham Waterworks Co (1856) Ex Ch 781 The test is self-explanatory: would a reasonable person (as determined by a judge or jury), under the given circumstances, have done what the defendant did to cause the injury in question; or, in other words, would a reasonable person, acting reasonably, have engaged in similar conduct when compared to the one whose actions caused the injury in question? Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. 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.
Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.
There are also two other general principles relating to damages. Firstly, the award of damages should take place in the form of a single lump sum payment. Therefore, a defendant should not be required to make periodic payments (however some statutes give exceptions for this). Secondly, the court is not concerned with how the plaintiff uses the award of damages. For example, if a plaintiff is awarded $100,000 for physical harm, the plaintiff is not required to spend this money on medical bills to restore them to their original position – they can spend this money any way they want..
The French criminal code, as a rule, requires a person to have acted with mens rea, for an act to be punishable. Comparably, the Italian Penal Code
The Indian approach to professional negligence requires that any skilled task requires a skilled professional. Jacob Mathew v State of Punjab 2005 S.C. 0547, per R.C. Lahoti. Such a professional would be expected to be exercising his skill with reasonable competence. Jacob Mathew v State of Punjab at 8 Professionals may be held liable for negligence on one of two findings:
The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the finder of fact at trial (the judge in a bench trial, or jury in a jury trial) to decide whether the defendant is or is not liable. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. 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. The court can find that regardless of any disputed facts, the case may be resolved as a matter of law from undisputed facts because as a matter of law the defendant cannot be legally responsible for the plaintiff's injury under a theory of negligence.
On appeal, depending on the disposition of the case and the question on appeal, the court reviewing a trial court's determination that the defendant was negligent will analyze at least one of the elements of the cause of action to determine if it is properly supported by the facts and law. For example, in an appeal from a final judgment after a jury verdict, the appellate court will review the record to verify that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his or her case.
Common law
India
With regard to negligence, Indian jurisprudence follows the approach stated in Ratanlal & Dhirajlal: The Law of Torts,In the case of Ms Grewal & Anor v Deep Chand Soon & Ors 2001 L.R.I. 1289 at 14, the court held that "negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. ... negligence represents a state of the mind which however is much serious in nature than mere inadvertence. ... whereas inadvertence is a milder form of negligence, negligence by itself means and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow." laying down three elements:
New Zealand
(1998). 9781862873001, Federation Press. ISBN 9781862873001
(2026). 040871686X, LexisNexis. 040871686X Paxhaven Holdings LId. v. Attorney-General 1974 2 N.Z.L.R. 185 (both on the interrelation of negligence and nuisance)
(2026). 040871770X, LexisNexis. 040871770X
United States
The United States generally recognizes four elements to a negligence action: duty, breach, proximate causation and injury. A plaintiff who makes a negligence claim must prove all four elements of negligence in order to win his or her case. 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. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment.
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