Negligence

Negligence is an Unintentional Delict.

Development
Traditionally Negligence has relied upon the Neighbour Principle established in Donohugue v Stevenson - that a duty of care is held to those who can be reasonably expected to be potentially harmed by your actions, or inactions.

However this has developed further by the Tripartite Principle (Foreseeablity, proximity, and whether awarding damages is fair, just and reasonable) established in Caparo Industries Plc v Dickman, and the Calculus of Risk.

Forseability
For foresabilty to be shown, the some harm must be shown to have been reasonably foreseeable. However, the probability of the risk of injury can affect whether or not a delectable event occurs. Bolton v Stone summed this up by saying where injury was not likely to happen, negligence cannot be found.

Demonistrating this risk calculus quote well is St Geroge v Home office which follows the story of a prisoner in who was suffering from drug withdrawal; during withdrawal he often faced epileptic seizures and told prison authorities about this. Despite this information he was allocated a top bunk in the prison. Six days later he had a seizure and fell off his bunk with damage occurring. Althogh the home office argued unsuccessfully that they were not the cause of the damage (the seizure was), placing the defendant on the top bunk was seen to magnify the risk so much that this became one of the causes of damage - had he been placed on the bottom bunk little to no damage would have occurred, and the home office may not have been negligent.

This test is subjective - in Mullins v Richards one of a pair of 15 year old girls "Fencing" with rulers was hurt when a shard entered her eye - the appropriate text in this case was based on the age of the children; Orchard v Lee (2009) where a child fell on a teaching assistant is similar.

In Samuel v Andrews (2010), a mother completed shopping with her children, and began to get them into the car. As the older child (8) was entering, he knocked off the handbrake, setting the car in motion. The younger child, just a toddler, was in front of the car and was crushed despite the mothers attempt to prevent injury. In this case, it was not seen as reasonably foreseeable that the older child would knock off the handbrake.

Uren v Corporate Leisure (UK) ltd (2013) during tag-team fun relay on a RAF base, allowing participants to dive into a shallow pool was held to be negligent as the foreseeable risk was so high, and any competent risk assessment would have resulted in head first entry being banned.

The reasonable man is neither over-apprenhensious, nor over-confident. However, as per Gilfillan v Barbour, an emergency may justify extreme behaviour.


 * (However, this Gillfillan excuse isn't absolute. In the actual case a Police driver responding to an emergency call drove at 60 Miles an hour through an intersection where Barbour was turning right. Although the court agreed that the Policeman owed a different standard of duty of care than the regular driver, instead owing a level of care set at "reasonable emergency service driver" - Gillfillian's conduct did not even met this standard).

The Significance of forceable harm is a potential issue, in Whippey v Jones (2009) saw a great dane, released from its leash, knock over another user of the park. In this case, the risk of harm was not seen as significant enough. Similarly in David v McIrvine a bull that escaped from a field and caused a road traffic accident wasn't seen to be a reasonably foreseeable risk.

However in Harris v Perry (2009), where parents were supervising a number of activities at a children's party, it was geld that the right standard in this case was to expect non serious injury and the right level expected of care that which a reasonable parent could take, and that constant surveyance is the wrong standard to expect - it went further to say that it is impossible to preclude all risk from play. Cockbill v Riley, where a 16 year old became tetraplegic from attempting into a paddling pool concurred with the "supervision not surveyance" doctrine.

The level of foreseeable damage doesn't have to match the level of damage that is actually done; in Hughes v Lord Advocate (1963) children knocked over a paraffin lamp left at a roadworks/sewerage works site and were horribly burned - although the full scale was not forceable, that there was some foreseeable injury was deemed to be enough.

This gravity of injury is further explored in Bolito v Arriva, where a man seeking to get a bus to wait for some slower members of his party straddled the busses doorway. Rather than wait, or insist that the man either get on or off, the bus driver attempted to close the doors and drove off.

Proximty
To show proximity, the following criteria is used
 * Does the defender know the persuer?
 * Did the defender know the information would be communicated to the persuer?
 * Did the defender know the persuer was going to act on the advice?
 * Did the defender voluntarily accept the risk?
 * Does a special relationship (akin to a contract) exist?

Hines v King Sturge Llp (2011) examined "special relationships". The pursuers operated a bakery operated by the pursuer in premises rented from a third party, but managed on their behalf by the defender. The property was damaged in fire which was exacerbated by a remotely monitored fire alarm being disconnected by the managing agent. The Agent was found to potentially have a duty of care to the pursuer.

Gibson v Orr (1999) explored the duty of care from police with proximity in mind. After a bridge was knocked out by a flood, the police only blocked off one side of the broken bridge, flashing lights at the other. In this case a proximate relationship was found (and that it was fair, just and reasonable to sue the police).

Reparations
Traditionally only damage to the person or property was thought to be claimable, Pure Economic Loss, such as an employer losing out from an employee being off work was not thought to be claimable.

Pure (Primary) Economic loss
Following Hedley Byrne v Heller and Twomax v Dickson, Neglegent careless misrepresentation was found to open to potential liabilities where a business relies upon that information. Caparo Industries Plc v Dickman limited this somewhat, an incorrect audit report used as investor information was not found to actionable unless the creators knew it would be passed on for investment purposes, and that they were happy to assume this risk.