Liability in Negligence (Part 2)

Liability for Negligence

25 September 2021

Establishing Liability

Liability in negligence requires the proof of whether the defendant was in fact negligent. Stated otherwise, this requires that he failed to take the relevant degree of care in the circumstances.  In broad terms, the relevant degree of care is that which is reasonable in the circumstances. The defendant has failed to act as a reasonable person would do.  If he owed a duty of care to the claimant, this would constitute a breach of that duty.

In many circumstances, a duty of care to avoid physical injury or property damage by conduct to another will readily apply.  In these cases, the question will be whether there has been negligence in the circumstances.  Although negligence is in one sense, a matter of fact, it is in a legal sense, a judgment on the facts.

Finding the Facts

Questions of what actually occurred in a physical sense, what the claimant and defendant did or did not do etc., are primary facts. In some cases, the primary facts may not be clear because of contradictions, weaknesses in recollection, absent parties and the inability to provide proofs in accordance with the law on procedure or evidence.  The facts on which the judgment or evaluation is made, are the facts that are “found”, regardless of whether they are the actual facts.

Once, all facts are ascertained or found by the judge whether disputed or not, a judgment is made on those facts. Certain facts if proved, raise legal presumptions. A  prime example is the doctrine of res ipsa loquitur; the matter speaks for itself.  The judgment or finding of facts will determine whether there has been negligence in the circumstances.

Prior to 1988, most personal injury cases in the Superior Courts were tried with a judge and jury.  The jury was primarily responsible for determining whether the defendant’s conduct was negligent.  They made the finding of facts.  Using the judge’s direction on the law, they determined if there had been a breach of duty by way of a judgment or evaluation of the facts as they “found” or determined them.

The Reasonable Person

In negligence, the finding of negligence is based on how a hypothetical reasonable man, would have acted in tie circumstance. He is said to be the average man, described in the early twentieth century in England, as the man in the “man on the Clapham omnibus”.  Historically, he was not a woman.

The concept of the reasonable man is an abstraction and is a measure employed in applying justice.  It has been said that a person is negligent if he fails to take the degree of care which the justice requires he should take.

Where the practice of particular professions or businesses is in question, the practice of other professionals or businessmen in that area will inform the position.  Where professional negligence is involved, expert opinion will usually be given.  Where, however, the decision is involving everyday life, such as road traffic claims, they will draw on their own knowledge of the world.  Value of judgments will be involved.

The question is, in a  formal sense,  what the person equivalent person would or should have done in the circumstances.  Where the matter relates to everyday matters,  the standard is informed by the standards of the community.  Where it relates to a person who professes a particular trade or business, the standards of that business are the touchstone.

The practice of other persons in similar conditions is relevant.  In the case of everyday events, the practice of mankind generally may be looked at.  The standards of the community are not relevant where for example, people in practice have disregarded a rule, such for example as a traffic sign requiring that a driver stops at a particular junction.

The standard required is determined by the judge.  In a sense, the concept of a reasonable man is a fiction or device.  Judges do not, in theory, make the law, but they apply it.  They do not, in theory, determine matters of policy. This is a matter for the legislature.

Implicit Considerations

However, in practice, particularly in the law of negligence, judges do bring their own concepts of justice, in determining what amounts to negligence. In one sense, there is a policy element in decisions on negligence.  Implicit in a judgment in a particular case, may be a determination of what is desirable in the public interest.

In practice the courts look explicitly or implicitly at the following factors;

  • the magnitude of the harm that may occur;
  • the probability of a damage being done by the conduct in question;
  • the value or utility of the objective to be achieved by the conduct; and
  • the burden in terms of cost, time and trouble in taking precautions against the risks.

It has been said that there is an implicit balancing of whether the precaution needed to avoid the risk, times the size of the risk and the probability that it will occur is greater than the financial and practical burdens of taking the precautions needed to avoid the risk. This is not a formal or conscious criterion used by courts. However, it illustrates the implicit logic and reasoning in negligence cases.

It is difficult in practice to measure and value many risks and benefits.  In particular, the effect of personal injury and death are difficult to measure in quantitative terms.  The probability is not readily calculable, even if such evidence and information were before a court. However, such evidence is not admissible as such, as it does not relate to the facts in dispute. The admission of such evidence would place the courts in the position of policymakers.

The is a significant subjective element in the determination of the parameters of liability for negligence and in their application to the facts in the case. Even insofar as such calculation is consciously or subconsciously undertaken, some judges may have greater fortitude, be more stoic etc. Different values may be placed on different activities and different risks.

Some judges may seek to change community values, where they believe they are undesirable.  Judges may be out of touch with their community, by reason of being drawn from narrow strata of society, typically, relatively privileged and older than the population generally.


The concept of foreseeability is central to negligence (as well as certain other important areas of law).  If a loss is reasonably foreseeable, then there is potential liability in negligence.  The concept of foreseeability is itself highly judgmental. All outcomes and events are foreseeable with greater or lesser probability. Some are foreseeable with complete certainty or high probability. Others are remote and would not ordinarily arise.  They may range from very probable to very improbable.

Questions may arise as in a negligence claim, as to whether a very remote possibility is foreseeable.  This may be analysed in terms of reasonable foreseeability.  The court will determine whether or not the particular harm or risk is reasonably foreseeable. The concept of reasonable foreseeability is subjective.  It would be more objective to see the matter in terms of reasonable probability, but the courts do not articulate issues of negligence in this way.

An event may be foreseeable in a broad sense, but not in the detail or the precise manner in which it actually occurs.  The possibility of a general type of outcome might be foreseeable, but there may be differences of degrees as to the extent to which this corresponds to the manner in which the harm actually occurs.

The extent of foreseeability of a particular risk and possible outcomes may depend on the defendant’s state of knowledge.  What may be highly foreseeable and probable by one person, may be remote to another.  The absence or presence of particular factors may make something that appears to be improbable, to be in fact probable. This may raise questions as to the knowledge,  which a person has, or ought to have of the risk.

Reasonably foreseeability is measured by reference to the hypothetical “reasonable man”. The test is essentially objective. However, account is taken of the particular characteristics of the defendants to some extent.

Risk v Utility

The magnitude of the risk is taken into account. In some cases, it may be a critical factor. Questions as to societal values may arise in determining the magnitude of the risk.  Where the risk of death or serious personal injury is involved, the magnitude of the harm is difficult to appraise.  It is difficult in moral terms to balance the number of deaths that could be prevented against the costs and inconvenience caused by requiring that parties hold to a particular standard.

Although a life may be regarded as having an infinite value, it is clear that there are limits on what the courts and society expect by way of inconvenience and expenditure, in order to reduce and eliminate risks, where a socially useful activity such as driving, is involved.  Where an actual individual is in peril, societies are prepared to spend almost significant sums in order to save a life.   However, where the question is more abstract, there are implicit limits on what costs will be deemed reasonable to incur.

The value of the activity being pursued and the burden of the precautions needed to avoid the harm are relevant factors in negligence claims.  An example that is sometimes given, is the cost of erecting fences around sports grounds, in order to prevent damage from occasional straying balls.  It may be that the cost of erecting fences would make the playing of the sport prohibitively high, relative to the probability and risks of serious injury.

Ease of Avoidance and Precautions

The steps which could be taken to avoid the relevant risk may be so minimal and inexpensive, that the court will find that the failure to take them, amounts to negligence.  Similarly,  some activities may be so inherently dangerous, that the issue of precautions does not arise. The activities may have little social utility.

The precautions required to avoid most road traffic are relatively trivial, such as driving more slowly, making signals, keeping a better outlook etc.  Accordingly, issues of foreseeability rarely arise in road traffic accidents, irrespective of how unusual the consequences are. The risk is so significant and its avoidance is so feasible and manageable, that liability is readily imposed.

In a broad sense, all road traffic accidents derive from driving itself.  In a narrower sense, the accidents are typically attributable to specific lapses and failures.  While driving may be a socially useful activity, a lapse or carelessness is rarely justifiable, relative to the risks.  There are limits to this rationale as a basis for determining negligence.  The fact that a driver has a good reason to drive recklessly, will not usually absolve him from liability for accidents which result.

Negligence involves the balancing of the interests and objectives of parties to pursue objectives which creates the risk of loss and damage to others. Unlike the public policymaker, the judge looks retrospectively on what should have been done in the past.  The purpose is to determine whether and how much compensation should be paid in respect of loss or damage, which has been caused by the defendant to the claimant.

In a sense, negligence is moral fault.  A person who is held responsible for loss caused to another in breach of his duty of care may be stigmatised by the finding of liability. The defendant has paid insufficient attention to the interests of others by pursuing activities which risk the safety, lives or property of another There may be an element of moral blameworthiness which justifies the proposition that compensation ought to be paid.

A decision in a negligence case may have an effect on future behaviour, as it sets standards and a benchmark. It is ultimately a judgment as to whether the defendant should have behaved in the manner in which he did.

Impersonal Standard

Negligence is measured by an objective standard.  It does not matter whether the defendant did in fact, foresee the risk of the particular accident. It is not possible to determine the defendant’s personal apprehensions, in any event. The degree of his subjective blameworthiness is irrelevant.  The test must be objective in the public interest.

The courts do take into account the personal characteristics of the respondent to a certain extent. Regard will be to the defendant’s physical condition. Regard will be had to what could have been done if the defendant, in fact, had a special skill. In that case, a higher standard may be expected.

If a person has special disabilities, the standard will be determined relative to a person who has those disabilities. If, however, a disabled person undertakes an activity which requires ordinary skill, he may nonetheless be liable. The physical disabilities of the defendant driver will generally be ignored in road traffic cases.

As the purpose of applying negligence is to determine whether compensation should be paid, the fact of insurance is highly material. However, this may not be taken into account. The fact or absence of insurance may not be disclosed to the judge or jury.

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