Team Member Evaluation Table

                           
   II.BODY

A.Negligence and Negligence tort:

1.What is negligence?:

       Negligence is that its ordinary, everyday meaning is different from its

legal meaning. The ordinary meaning of negligence is the “failure to take
proper care in doing something”. It occurs in everyday life, such as a
Council that fails to repair the pavement properly, resulting in an injury to
a pedestrian. The legal definition of negligence has a much narrower
application than its everyday meaning. This is because the legal meaning
relies on the concept of “the reasonable person.” Or negligence can arise
where someone is professing a particular skill, such as a teacher, a doctor,
or an attorney - this is commonly called professional negligence. 

2. What is the tort of negligence?:

       Negligence tort includes a wide range of accidents and incidents

which are committed unintentionally, but which nevertheless cause
physical, emotional or financial harm. It is a failure to behave with the
level of care that someone of ordinary prudence would have exercised
under the same circumstances. The behavior usually consists of actions,
but can also consist of omissions when there is some duty to act. In order
to  succeed in the tort of negligence, the claimant must prove three
matters:
 

 The defendant owes him a duty of care




 The defendant was in breach of that duty




 The claimant suffered damage, which was caused by that breach

of duty and the damage was not too remote

B.Some elements required to prove negligence:

1.Duty of care:

1.1.Definition: 

       Duty, defined as a person's obligation to another, stems from

millennia of social norms, philosophy, and religion. Duty acts as the
social glue that holds people together in a sense of community. Duty
obligations serve as channels for socially responsible behavior before
something happens, and they also serve as a foundation for determining
whether an action is appropriate after the event. Duty of care is a duty to
take reasonable care to avoid causing a foreseeable kind of injury to a
particular person or an ascertainable class of persons in identifiable
circumstances.

1.2.Establishing Duty of Care:

        The Donoghue v. Stevenson (1932) case, popularly referred to as the

"The Snail in the Bottle" case, established the basic legal principle of
Duty of Care. This is traditional British case law that has given the Tort
of Negligence a new legal opinion. Mrs. Donoghue drank a bottle of
ginger beer.. She didn't realize there was a dead snail in the bottle until
after she finished drinking and poured the remaining beer into a glass.
She was shocked and experienced stomach ache right away. In 1933, she
won a damages lawsuit against Stevenson, the manufacturer of beer
bottles. From this case, Lord Atkin (the judge in this case) instituted 'the
Neighbor Principle': “The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour; and the lawyer’s
question, ‘Who is my neighbour?’ receives a restricted reply. […] The
answer seems to be – 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 which are
called in question”

Due to the nature of the parties' connection, there is a responsibility

of care. Some connections fall under the "established obligation
category"; in these relationships, a duty of care is assumed to exist. In
some situations, a duty of care relationship may exist due to the nature of
the relationship between the parties, even if no presumed duty of care
exists, in other words “Non-Established” Categories of Duty of Care
group, the proof of Duty of Care will be relied heavily on the three stage
test set out in the case of Caparo v Dickman (1990): (1) the loss must be
foreseeable, (2) the relationship between the parties must be
sufficiently proximate and (3) it must be fair just and reasonable to
impose the duty.

Firstly, Foreseeability is reasonable foresight of  harm to the

claimant. The question is whether it is reasonably foreseeable that the
defendant’s actions will affect this particular claimant? Bourhill v Young
(1943) is an example where the claimant suffering an injury was not
reasonably foreseeable. Mr. Young died after colliding with another car
while driving along on the road. Mhad just left the train and  approached
the accident. She suffered a nervous shock and gave birth prematurely to
a baby who died soon after. Ms. Bourhill sued Mr. Young (died by
accident) because he violated the Tort of Negligence but failed. The
court's decision was that Mr. Young did not have Duty of Care for Ms.
Bourhill, he could not have foreseen that a third person would suffer a
nervous shock due to a traffic accident that he negligence caused. 

The second element is the claimant's and the defendant's close proximity
to one another. Like foreseeability, proximity is a concept that requires an
evaluation of the facts in a particular case. As just mentioned, proximity
is concerned essentially with how one party is placed with regard to
another. The focus is upon two persons - upon the claimant and the
defendant. The test looks to examine if there were any major causal
pathways that could have led to harm to the claimant between the
claimant and defendant at some point before the failure in care (or to
persons similarly situated). Significant causal pathways let the court
identify the actual defendant - rather than just an idealized agent - as a
person who had a substantial ability to cause harm to the claimant or class
if care were not taken. When a claimant alleges a damage to a subordinate
interest, such as financial wealth, courts are more likely to require proof
of proximity.

Ultimately, whether or not a duty is imposed is a normative decision.

Even if a claimant can show closeness and foreseeability, the court may
nonetheless decide that imposing a responsibility is not "fair, just or
reasonable" in all the circumstances. This requirement gives the courts
flexibility to deny a duty to exist, if on balance it seems reasonable to do
so. To impose an obligation, it must be just and reasonable; otherwise, it
risks unleashing a wave of compensation claims.

2.Breach of Duty of care:

2.1.Definition:

       A duty is an obligation one party or individual has to another party or

individual. Duties may not need to be recorded or even verbally agreed
upon. A breach can come as a result of an action or, sometimes, inaction
by the responsible party. Breach of duty of care simply means failure to
take reasonable care as expected. Below are some examples of how a
defendant could breach the duty of care owed to the plaintiff: 

A driver has a duty to other motorists to travel safely on the roads. That
obligation is violated when a distracted driver crashes into another
vehicle because he was texting while driving. He breached his duty by
not executing his or her duty to drive safely although that person
knowingly ignored their legal responsibility. 

When a doctor or any other medical professional caring for you fails to
provide you with a duty of care, it means that appropriate action is not
taken that leads to negative effects on your health. It is considered a
breach of duty. 

2.2.Determining Breach of Duty of Care:

        A breach of duty of care occurs when a defendant has fallen below
the particular standard of care demanded by the law. Breaches can occur
in a number of ways, including acting or failing to act in a manner that
avoids a legal responsibility: A person is injured by the behavior of others
( either their actions or lack of action) when it was reasonably foreseeable
that the action could cause injury, the risk of an injury occurring was
clear, the behavior that caused the injury was unreasonable ( if a
reasonable person in the same situation would have done things
differently). 

         Once a duty of care exists, the plaintiff needs to show that duty of
care is breached. In order to establish the breach of duty the plaintiff has
to prove that the defendant committed a breach of duty to take care or he
failed to perform that duty. This is when a person or company has a duty
of care to another and fails to live up to that standard of care. A plaintiff
must prove that the defendant’s act or omission caused the plaintiff to be
exposed to unreasonable risk of injury and/or harm. In other words, the
defendant failed to meet their obligation to the plaintiff and therefore put
the plaintiff in harm’s way.

        On the other hand, in order to determine whether the duty of care
was breached by the defendant- either by his conduct or omission, the
courts use an objective standard commonly referred to as the standard of
the reasonable man. A “reasonable person” is a hypothetical standard, not
a real person. A question that the court would ask is what would a
reasonable person have done? Assuming that reasonable person is in the
shoes of the defendant. That is the standard of care. The court actually
determines a standard of care in each case and then looks at the conduct
of the defendant in comparison to that standard of care and then
determines whether that person actually breached that standard of care or
not. If the conduct of the defendant falls short of what is expected of a
reasonable man, the defendant is held to have breached the duty of care.
Otherwise, he is not in breach.

           However, one thing to be careful is the level of duty one expects

depends on that defendant's skills and their abilities. Negligence law
normally compares the defendant's conduct to an external standard of
good behavior, an "objective" standard, measured by how a reasonable,
prudent person would have acted in the circumstances with respect to
imposing risks on others. While most adults are measured by the
reasonable person standard, children and persons with physical
disabilities are held to a standard of behavior reasonable for similar
persons with such characteristics. Did the professional act in a way that
other professionals in the field would have deemed reasonable? For
instance, in a case where you are claiming that the specific surgeon was
negligent in performing a surgery. The question for the court is “What
would a reasonable surgeon who is reasonably diligent and informed
about his profession have done in those specific circumstances.?” The
courts do not expect all healthcare practitioners to meet the standards of
the most experienced or skilful members of the profession, only of an
ordinarily competent practitioner in that particular field. However, they
will expect anyone who takes on specialist work to meet the standards of
a specialist in that area. In addition, the degree to which account will be
taken of a healthcare practitioner's relative inexperience is limited - the
courts will expect a practitioner to meet the standards of a reasonably
competent professional and will not make allowance for the fact that the
practitioner may have only recently qualified, or may have limited
experience of the particular procedure. The practitioner can, however,
discharge their duty of care by seeking the assistance of a more senior or
experienced colleague.

3.Causation: 

         A determination that the fault of a person (the “tortfeasor”) caused

particular harm comprises the following elements: the fault  was a 
necessary condition of the  occurrence of  the harm (factual causation);
and it is appropriate for the scope of the tortfeasor’s liability to extend to
the harm so caused (scope of liability).

3.1.Factual Causation:

          Before negligence law assigns responsibility to a defendant for a

plaintiff's harm, it demands that the plaintiff establish a cause-and-effect
relationship between the negligence and the harm. Thus, causation serves
as the primary element of negligence that connects the defendant's
wrongdoing to the plaintiff's harm. Every day, thousands of people suffer
injuries or fatalities from vehicle accidents, and a variety of other
mishaps. While many of these incidents can be attributed to one or more
people's irresponsibility, many others are the consequence of simple bad
luck or the thoughtless actions of the victims themselves. Negligence law
allows an accident victim to recover damages only if the defendant was at
least partially to blame for causing the accident. The element of "cause in
fact" (or "factual cause") thus may be described as the actual connection
between a defendant's negligence and the plaintiff's harm. To help
determine whether causation is established, the court will consider
whether the party would have suffered harm ‘but for’ the actions or
omissions of the other party. 

           The defendant is only responsible for the harm that was actually
caused by their negligence. It didn't have to have been the only factor
harming the plaintiff. As long as through but for test, factual causation
can be established (would A have suffered harm/happened if B had not
happened). 
 To prove causation, it does not suffice for the plaintiff to show
merely that the defendant's conduct caused the harm; the plaintiff must
further link his or her damage to the defendant's negligence, the aspect of
the conduct that breached a duty to the plaintiff. Courts throughout the
world have agreed that the relation of necessity (ie 'but for') between the
breach and outcome is one that the law should designate as causal. The
"but-for" test, which requires that a defendant's negligence be a sine qua
non of the plaintiff's harm, a necessary antecedent without which the
harm would not have occurred. Put otherwise, the defendant's negligence
is a cause of the plaintiff's harm if the harm would not have occurred but
for the defendant's negligence.

        It has been questioned whether this principle should be confined to

two defendants .In the case the odds of determining either one as the
culprit is 50:50. Suppose three people are hunting birds, two shoot in the
other direction, causing a bullet from one gun to hit the third hunter, but
the plaintiff is unable to identify the bullet fired from the gun. any. If the
plaintiff can't prove whose negligent act was, both defendants can be held
liable, unless either one can prove he or she did not cause the injury (the
"joint and several liability" rule). So each person's degree of liability will
reflect his probability of having caused the injury. Therefore, applying the
same reasoning to prove causal uncertainty is not a great departure from
the usual premises as may first appear.

3.2.Scope Of Liability:

           It could be said that the “scope of liability” test acts as a quality
control type measure in the administration of justice. The scope of
liability or legal relationship is decided solely by the Court/Judge and
they must decide a valid judgment on the matter. There is a possibility
that a Judge finds it unreasonable that the negligent party should be held
liable for the damage or injury he or she has caused through his or her
negligent conduct. The court must properly decide whether or not the
defendant's liability for damages is actually suffered by the plaintiff. This
means that the harm caused must be reasonably foreseeable and not far-
fetched.

        For example, because the negligent party did not have the resources
available at the time to enable them to properly discharge their duty of
care. Especially the case of hospitals or healthcare workers, such as
during the COVID-19 pandemic. There is a lot of information about
people dying in the back of ambulances while waiting for saving or in the
hospital. Without examining the matter closely, it can be assumed that
this is clearly a case of negligence. However, looking at the matter in
more detail, the hospital or ambulance service could not have done more
reasonably in their duty of care. They have limited resources and are
unable to fulfill their obligations.

          “Scope of responsibility” will not be present in most cases. Not all

cases we consider "scope of responsibility". Indeed, most cases of
negligence resulting in physical or mental harm would not warrant a
guideline on the extent of liability. The issues at stake will be whether the
respondent breached his duty of care to the plaintiff or whether the
respondent's conduct was the cause of the plaintiff's harm.

C.Negligence Defenses:

1.Contributory Negligence:

Once the factors have been established, the question arises as to

whether the defendant can still shirk responsibility by asserting a
negligence defense. The most common negligence defenses are
contributory negligence, assumption of risk and inevitable accident.

Both the defendant and the plaintiff may share responsibility for an
injury. In this scenario, the plaintiff takes a part of the responsibility. 
When a plaintiff behaves in a way that does not conform to the
reasonable person criterion, which determines what the reasonable person
would have done to protect himself from injury that plaintiff
"contributes" to his own injury. To put it another way, contributory
negligence calls for everyone to take precautions. If it happens, both the
plaintiff and the defendant are liable - depending on the degree of fault.
The court will determine:

[1] whether the plaintiff was negligent in contributing to his injury; and

[2] that contribution is more or less. Depending on the degree of fault, the
court will make a decision so that the damages are balanced.

Contributing negligence is a harsh rule because it does not allow the

plaintiff to recover the defendant even if he or she contributed only a
small part of the injury to himself. 

For example, you get drunk and leave the pub, then you crash into John's
car (illegally parked on the street). Due to negligence, John will not
recover from your injury even though you are driving while drunk. John
had self-injured. So in this case, both sides are somewhat negligent,
John's car parked in the wrong place partly caused his injury.

2. Assumption of Risk:

Assumption of risk is the second primary negligence defense. A

plaintiff is said to “assume the risk” of injury if he voluntarily enters a
dangerous situation fully aware of the risk involved. The principle behind
this defense is that a plaintiff who voluntarily consents to an activity
cannot later sue if injured. “Voluntary” means the person assuming the
risk had a choice to avoid it.  If the person had no choice to avoid the
dangerous activity then he cannot have assumed the risk. 

For this defense, the respondent needs to present the following in order to
successfully defend the presumption of risk

[1] Plaintiff was aware of the risks of the operation

[2] Plaintiff voluntarily accepts that risk

These assumptions are often found in sports, thrilling games. We

all sign a number of waivers depending upon different activities that we
engage in, where we voluntarily assume the risk of that activity. 
Extremely dangerous activities like skydiving and paragliding, upside-
down roller coasters, and areas with clearly-posted signs like "Danger" or
"Enter at Your Own Risk" are typical examples of the assumption of risk.
A plaintiff may be deemed to have assumed the dangers associated with
the activity if they participate in it or choose to ignore posted warning
signals.

3. Inevitable accident:

In this part of the defense, the defendant needs to prove to the court
that the injury they caused was caused by force majeure or unforeseen
circumstances - the defendant could not have done anything even with
prudence and care. They must be able to demonstrate that their negligent
actions were beyond their control.

There are many cases that can be assumed to be an accident. For

example, when driving on the road, a driver suffers a heart attack behind
the wheel or mechanical failure, an accident is inevitable or a car's brakes
suddenly fail and there was no prior indication that this would happen,
this can make an accident inevitable. Inclement weather can also cause an
inevitable accident: If roads are icy or slippery, even well-maintained
vehicles are at risk of sliding, and this can cause an accident that isn't
really anyone's fault. 

D. Specific case:

CASE: Chester v Afshar [2005] 1 AC 134

FACTS:  Plaintiff has been suffering from back pain for several years,
severely affecting her walking activities.Under plaintiff's advice, she
underwent surgery with a very low risk of spinal nerve damage (1-
2%).However, the plaintiff was not informed of this. Unfortunately, the
defendant fell into that low-risk surgical case, after which she was
paralyzed. She sued the doctor for negligence in failing to warn of
possible risks. She said that if she was aware of the danger, she might not
agree with the surgeon. 

PROCEDURAL HISTORY:  

1.

The judge found that the defendant negligently failed to warn the
defendant of the risks posed by surgery. The judge concluded the
plaintiff was liable for damages. The Court of Appeal dismissed
the defendant's appeal, the case being appealed to The judge held
that this was an adequate causal relationship between the
defendant's failure to be warned and the damage caused by the
plaintiff. The judge concluded the plaintiff was liable for damages.
The Court of Appeal dismissed the defendant's appeal, the case
being appealed to the House of Lord. 

2.
3.

Defendant submits that conducting the surgery at a different time

does not change the fact that the operation bore risks. The House of
Lords dismissed the appeal (in a 3 – 2 split decision), holding that
the defendant had failed in his tortious professional duty, satisfying
the ‘but for’ test, and that the claimant deserved a remedy.
Because: 

4.


 There was no causation as on the balance of probabilities, she
would have gone with surgery anyways if told. 




The issue of causation was to be addressed by reference to the

scope of the doctor's duty of care, namely, to advise his patient of
the disadvantages or dangers of the treatment he proposed. Since
the injury she sustained was within the scope of the defendant's
duty to warn, and was the result of the risk of which she was
entitled. 

                                               III, CONCLUSION 

        In conclusion, the law on non-contractual damages by negligence

has aided in resolving the majority of issues in people's lives. Therefore,
for the law to be more effective, every citizen needs to raise their legal
literacy for those around us, including our family, friends, and
community. In addition, to restrict situations such as illegal investigation
cases, not specific or without clear evidence, incautiously look for the
source the root cause, which has come to a conclusion that causes harm to
both the property and mental of convicts, law enforcement organizations
in public authorities function of the state in general and the organization
to implement the law on compensation for damage by negligence. The
professional qualifications of the personnel must all be improved in
addition to the contract in particular. The Supreme People's Court's
guidelines for accepting, investigating, and resolving cases should be
undertaken precisely, and more quality-focused in order to bring the right
sentence for people.

 
 

                                                 REFERENCES

1.

What Is the Tort of Negligence? When Does Duty of Care Apply?

Etheringtons Solicitors, Jun 26, 2022, [Online] Available
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Accessed on ]

2.
3.

M'ALISTER (OR DONOGHUE) (PAUPER) APPELLANT; AND

STEVENSON RESPONDENT, Lords' Journals, May 26, 1932, [Online]
Available:
https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1932/100.htm
l 

4.
5.

Udemezue, Sylvester and Ojeih, Chukwunye, A Critical Analysis of the Role of

Courts in Determining Breach of Duty of Care in the Law of Torts (February
17, 2021). Available at SSRN: https://ssrn.com/abstract=3840080 or
http://dx.doi.org/10.2139/ssrn.3840080

6.
7.

Morris, C., Chawla, G. & Francis, T. Clinical negligence: duty and breach. Br
Dent J 226, 647–648 (2019). https://doi.org/10.1038/s41415-019-0312-9

8.

5."Chester v Afshar - 2004." LawTeacher.net. 11 2013. All Answers Ltd. 11 2022

<https://www.lawteacher.net/cases/chester-v-afshar.php?vref=1>.

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2018. Web. 8 November 2022.
<https://www.lawteacher.net/lectures/tort-law/negligence/breach-of-duty/?vref=1>.
7.Negligence, Cornell law
school,https://www.law.cornell.edu/wex/negligence , 1 November 2022

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