When do you say that someone has been negligent? What probably will come to your mind is that person has been careless. You are not exactly wrong, but in legal terms, you might need to add a few things to that definition.
In law, negligence means the act of breaking or failing to observe (breach), a legal duty to care for someone or something and this failure results in someone suffering damage or injury. For example, if Musa (the proud owner of a brand ‘old’ Subaru drives past red traffic lights and knocks someone, under the law, it may be said that he has been negligent or even reckless. Why???
THE QUESTION OF DUTY OF CARE
An (in)famous ruler once boasted that if he sneezed in his country, the whole of Europe would catch a cold. What he was possibly trying to say was that he had so much influence that any action he took in his country affected everyone far and wide. While it is true that some people’s actions have an impact on others that they have not even met, even people that powerful cannot be responsible for things that happen anywhere in the whole world.
In law, Negligence is just like that ruler. Even if it can be said that your actions may have effects that are far-reaching, you cannot be responsible for any and all effects without limit. Under the law, one can only be guilty of negligence against a person harmed by their behaviour if it can be shown that there is some ‘connection’ (we shall call this a relationship) that creates a sense of responsibility to not cause the other person harm.
This responsibility not to cause harm to a person you are in this ‘relationship’ with is referred to legally as ‘duty of care’. Duty of care in simple terms means an obligation/responsibility that one person has to take proper care to avoid causing injury to another person.
The reason why this is important is this: First, it is not possible to say that you have interacted with everyone in the world or had some sort of dealing with them. Therefore, you cannot possibly know what they like or do not, and what might cause them to suffer injury or harm.
Second, in order to allow society to function properly, there is a need for certainty and without this limit, the courts would be overwhelmed by all sorts of unnecessary cases. It would be impractical.
The duty of care can therefore be said to exist in all situations in which you could reasonably foresee that your (in)/actions may reasonably cause the other person to suffer injury. For example, that one road user’s actions can reasonably be foreseen to have an impact on those of another road user, as would an employer’s actions or inactions towards an employee, a doctor’s towards his/her patient, a lawyer towards a client or those of a manufacturer to the consumer. These are all, therefore, instances where a duty of care exists and the failure to respect it could lead to a successful claim of negligence.
HOW DO YOU GET THIS DUTY OF CARE?
As we have already said, not everyone has a duty to do everything for everyone else. However, depending on who you are in someone’s life, what your job/profession is, what business you are into or what the law has decided about you, you may find yourself having a duty of care towards someone else.
This duty is sometimes imposed as a result of an agreement you signed with someone, or because of your status towards another person or what you own. As a parent, for example, you have certain duties towards your child, if you fail at these, you may be liable and even get arrested for ‘child neglect’. As a pet owner at home, you have a duty to look after and control your pets so that they do not stray and start biting your neighbour’s children.
Many of you have probably never met the owner of KFC or CAFE JAVAS, but because you (might) go there for a date, the law imposes a responsibility on these restaurants to make sure that the food they serve you and your date is fit for consumption by a human being and does not contain ‘sleeping animals’ or things in it that should not be there and can cause you harm.
You may be asking yourself why we have gone on this long-winded explanation about the duty of care when we should be talking about negligence. The simple answer is this, you cannot prove and win a case where you accuse someone of negligence unless you can show and prove that there was a duty of care owed to you by that person you are accusing.
Before you can succeed in a claim of negligence, the courts expect you to prove the following :
- the person against whom you are claiming had a duty of care towards you;
- that person failed in that duty.
- you have suffered damage because of that failure on their part; and
- the damage/ injury you suffered can reasonably be linked to that person’s failure in that duty they have towards you.
Going back to our road user, if after buying a brand ‘old’ Subaru, Musa decides to drive one-handed at 179kph in a busy trading centre and ends up knocking someone down. Can you see why the person who was knocked down would call him negligent and ask the court to make Musa compensate him/her for the injuries he suffered?
