Law on negligence

Negligence is a breach of a legal duty of care that results in harm. For there to be a claim in negligence, three elements must be met, namely: -

• Duty of care;
• Breach of the Duty of Care; and
• Causation.

 

Duty of care

It must be proved that the defendant owed the claimant a legal duty to take care. There are established duties, such as duties of care owed by drivers to passengers, doctors to patients, employers to employees and road-users to other road-users etc.

 

Breach of the duty

It must be proved that the defendant is legally at fault for not meeting the standard of care expected of them, which is usually that of a reasonable person. The degree of care expected is determined by looking at the potential risk.

 

Causation

It must be proved that the breach of duty caused the claimant a financial loss. The burden is to prove the causal link between the breach and the loss. A useful way of establishing this is to say: but for the Defendant’s breach, would the harm to you have occurred? Furthermore, to prove causation, it is important to show that the damage was reasonably foreseeable, which will hold even if the precise way in which it occurred, or the precise extent of the damage was not foreseeable.