Negligence in tort law is a legal concept that forms the basis for many civil lawsuits. It refers to the failure of an individual or entity to exercise reasonable care in a particular situation, resulting in harm or damage to another person or their property.
To establish a negligence claim, several key elements must be proven: the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant’s failure to act reasonably, a direct causal link between the defendant’s actions and the harm suffered by the plaintiff, foreseeability of the harm, and actual harm or damage sustained by the plaintiff
Elements of negligence
The elements of negligence in tort law generally include the following:
Duty of Care: The defendant must owe a duty of care to the plaintiff. This means the defendant has a legal obligation to act reasonably and avoid causing harm to others in a specific situation. Duty of care varies depending on the circumstances and the relationship between the parties.
Breach of Duty: The defendant must have breached their duty of care by failing to act as a reasonable person would have under similar circumstances. This breach can involve an action the defendant took or failed to take.
Causation: There must be a direct causal link between the defendant’s breach of duty and the harm or injury suffered by the plaintiff. In other words, the harm would not have occurred “but for” the defendant’s actions or omissions.
Foreseeability: The harm that occurred must have been reasonably foreseeable as a result of the defendant’s breach of duty. In essence, the defendant should have been able to anticipate that their actions or omissions could lead to harm to others.
Actual Harm or Damage: The plaintiff must have suffered actual harm or damage as a result of the defendant’s breach of duty. This can include physical injuries, property damage, financial losses, or emotional distress.
Duty of care
The “duty of care” is a fundamental concept in tort law that refers to the legal obligation or responsibility one person or party (the “defendant”) has to act reasonably and avoid causing harm or injury to another person or party (the “plaintiff”) in specific circumstances. It essentially means that individuals or entities have a duty to take reasonable precautions to prevent foreseeable harm to others.
The “neighbourhood principle” is a concept in negligence law that derives from the famous case of Donoghue v Stevenson  AC 562, which was a landmark decision in the United Kingdom. This principle established the idea that a person owes a duty of care not to cause harm to those who are so closely and directly affected by their actions that they ought to have them in mind as potential “neighbours.” In other words, it introduced the notion that you owe a duty of care to your “neighbour” in a legal sense.
The key takeaway from the neighbourhood principle is that you should take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure your neighbours. This principle has been influential in expanding the scope of who can be considered a potential victim of negligence.
In this legal case, Batu Kemas Industri Sdn Bhd (the plaintiff) sued the Malaysian Government (D1) and Tenaga Nasional Bhd (D2)
for damages resulting from a power failure that damaged their factory machinery and disrupted production. The power failure occurred when D1’s contractor, Markas, ruptured an underground power cable during highway construction. Before this, D1’s public works department had requested D2 to remove/relocate power lines and cables from the work-site, but D2 didn’t respond and left the underground cable untouched.
The Court of Appeal (COA) found both D1 and D2 liable for the damages. D1 was held liable due to a non-delegable duty of care to third parties. The COA also ruled that the plaintiff was not contributorily negligent.
The key points of the judgment include:
- The rupture of the underground cable caused the damage, and Markas was negligent in this regard.
- D2’s failure to take reasonable precautions, such as relocating the underground cable or providing surface markers, made it more culpable than D1.
- The plaintiff was contributorily negligent for not installing surge arresters but wasn’t wholly responsible for the damage.
- Only economic loss consequent to physical damage was recoverable, not pure economic loss independent of physical damage.
- The high standard of care expected of electricity suppliers applied to personal injury cases and claims for damage caused by power failure or disruption.
As a result, the plaintiff’s claims for pure economic loss independent of physical damage were dismissed, but their claims for economic loss consequent upon physical damage were allowed. The defendants were ordered to pay 2/3 of the assessed damages to the plaintiff, with D1 being 40% liable and D2 being 60% liable.
In the concept of negligence, if a vehicle has an accident because it took evasive action to avoid your car, you are not automatically guilty of negligence. Negligence involves a failure to exercise reasonable care, and liability is determined based on the specific circumstances of the situation and whether you breached your duty of care.
Here’s how the concept of negligence applies:
Duty of Care: As a driver, you have a duty of care to operate your vehicle safely and responsibly to avoid causing harm to others on the road.
Breach of Duty: Whether you breached your duty of care depends on your actions leading up to the situation. If you were driving recklessly, violating traffic laws, or engaging in dangerous behaviour that forced the other vehicle to take evasive action, you might be considered negligent.
Causation: To establish negligence, there must be a direct causal link between your breach of duty and the accident. If your actions directly led to the other vehicle having to swerve or take evasive action, and this action resulted in an accident, then causation may be present.
Foreseeability: Courts consider whether a reasonable person could have foreseen that their actions might lead to an accident or require another vehicle to take evasive action.
Contributory Negligence: In some cases, both drivers may share some level of fault. If the driver of the other vehicle had a reasonable opportunity to avoid the accident but failed to do so, they might also be considered negligent.
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