Negligence-An Essential Element of a Successful Personal Injury Claim

negligence

If you have suffered a personal injury, the question of “negligence” is an important one. This piece will explain what negligence is.

Legal actions in Ireland, such as medical negligence or personal injuries actions, are pursued on the basis of negligence which is a tort (a civil wrong).

There are four elements to the tort of negligence:

  1. The wrongdoer had a duty of care to the person who suffered loss or damage-you don’t owe a duty of care to everyone. However, you do owe a duty to those who are proximate, and where the danger is reasonably forseeable;
  2. The defendant failed to conform to the required standard in his/her behaviour/conduct. The required standard is that of the ‘reasonable person’ and Courts will address the question: did the defendant act as a reasonable person would?
  3. Did the plaintiff/victim suffer actual loss or damage? And was the damage or loss forseeable? This is the general principle of “remoteness” of damage.
  4. Was there a sufficiently close connection between the conduct of the defendant and the loss suffered by the plaintiff? This is the idea of “causation”.

Each of these elements must be present to successfully sue for negligence. And each of them has been well canvassed in various Courts in common law jurisdictions around the world.

For example, if a Court decides that a person had indeed a duty of care to the person who suffered loss or damage, it will then turn to the question of the standard of care.

In assessing this aspect of a negligence claim, Courts will look to

  • The seriousness of the threatened injury
  • The likelihood of an  accident
  • The social usefulness of the conduct complained of
  • The cost of eliminating the risk.

The third element above-actual loss suffered-must be proven as negligence on its own is not actually actionable. The general principle of ‘remoteness’ of damage is important here; this means that the loss should have been reasonably foreseeable.

The fourth element above is concerned with a sufficiently close causal relationship between the conduct complained of and the resulting damage.

There are two further aspects of negligence claims which must be considered before bringing any legal proceedings:

1. Assumption of risk

The Civil Liability Act, 1961, section 34(1)(b):

this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;

This means that if the defendant can show that the plaintiff agreed to waive his/her legal rights before the act complained of, the action will be dismissed.

2. Contributory Negligence

This arises where the ‘victim’ was in some way responsible for the loss/damage suffered. The plaintiff’s compensation, if the claim is successful, will be reduced in proportion to the amount in respect of his/her own fault.

If you have suffered as a result of the negligent conduct of another, contact a solicitor.