Negligence (Lat. negligentia ) is a failure to perform the appropriate and or ethical treatment that is expected to be executed between certain circumstances. The tort legal area known as negligence involves the danger caused by failure to act as a form of carelessness perhaps under special circumstances. The core concept of negligence is that people should take reasonable precautions in their actions, taking into consideration the potential dangers they may have to other people or property.
A person who suffers losses caused by the negligence of others may be able to claim compensation to compensate their losses. Such losses may include physical injury, property harm, psychiatric illness, or economic loss. The law on negligence can be generally assessed in accordance with the five-part model that includes task assessment, violations, real causes, immediate causes, and damage.
Video Negligence
The negligence claim element
Some things should be set by anyone who wants to demand negligence. This is the so-called "element" of neglect.
Most jurisdictions say that there are four elements to the act of negligence: Assignment
- : The defendant has an obligation to others, including the plaintiff, to be cautious,
- violation: the defendant violates the assignment by incorrect action or cancellation,
- damage: as a result of the act or omission, the plaintiff suffered an injury, and
- Causes: Injury to the Plaintiff is a reasonably reasonable consequence of the act or negligence of the defendant.
Some jurisdictions narrow the definition down into three elements: task, offense and about causing damage. Some jurisdictions recognize five elements, tasks, offenses, real causes, immediate causes, and damage. However, in their hearts, the various definitions of what constitutes inattentive behavior are very similar.
Duty care
A defendant's legal liability to the plaintiff is based on the defendant's failure to fulfill the responsibility, recognized by law, in which the plaintiff is the intended beneficiary. The first step in determining the existence of responsibilities that is legally recognized is the concept of obligation or obligation. In negligence tort, the term used is the duty of care
The case of Donoghue v Stevenson (1932) establishes the modern law of negligence, laid the foundations of the duty of care and the principle of error which (through the Council of Advisers), has been adopted throughout the Commonwealth.. Hopefully Donoghue and her friend are at the cafe in Paisley. The friend bought her. Donoghue a jug of ginger beer. He drank his beer and then poured the rest on his ice cream and was horrified to see the remnants of a decayed snail coming out of the bottle. Donoghue suffered from neurological shock and gastro-enteritis, but did not sue the owner of the cafe, even sued the manufacturer, Stevenson. (Since Mrs Donoghue himself did not buy ginger beer, the privacy doctrine precludes contractual action against Stevenson).
The Scottish Judge, Lord MacMillan, considers the case to be included in a new category of offense (Scottish law equivalent to tort). This case continues into the House of Lords, where Lord Atkin interprets the biblical order to 'love your neighbor' as a legal requirement to 'not harm your neighbor'. He then went on to define the neighbors as "people who are so intimately and directly influenced by my actions that I should have had them in contemplation as deeply affected as I direct my mind to the actions or omissions mentioned in the question."
In the UK, a more recent case of Caparo Industries Plc v Dickman [1990] introduced a 'triple test' for maintenance tasks. Hazards must (1) be suspected (2) there must be a close relationship between the plaintiff and the defendant and (3) should be 'fair, fair and reasonable' to impose obligations. However, this serves as a guideline for the courts in establishing the duty of care; most of the principles still exist in the judge's wisdom.
In Australia, Donoghue v Stevenson is used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936). This is an important case in the development of the law of negligence in Australia.
Whether an obligation of care is to psychiatrists, as opposed to physical, the dangers have been addressed in the Australian case of Tame State v of New South Wales; Annetts v Australian Stations Pty Ltd (2002). Determining the task for mental disorder has now been incorporated into the Civil Liability Act 2002 in New South Wales. The application of Section 3 of the Civil Liability Act 2002 (NSW) is shown in Wicks v SRA (NSW); Sheehan v SRA (NSW) .
Task Violation
Once it is determined that the defendant has an obligation to the plaintiff, the question of whether the assignment is infringed must be resolved. This test is subjective and objective. Defendants who deliberately (subjective) face the plaintiff/plaintiff at substantial risk of loss, violate the duty. The defendant fails to realize the risk of substantial harm to the plaintiff, whereby any reasonable person in the same situation will clearly have realized, as well as violated the duty. However, whether the test is objective or subjective may depend on the particular case involved.
There is a reduced threshold for the standard of care owed by children. In the case of Australia McHale v Watson, McHale, a 9-year-old girl was blindfolded after being hit by a sharp metal rod cast by a 12-year-old girl, Watson. The defendant's son is being held without a degree of concern for adult standards, but a 12-year-old child with similar experience and intelligence. Kitto J explains that the lack of a child's future view is a characteristic that they share with others at that stage of development.
Certain jurisdictions, also provide abuses where professionals, such as doctors, fail to warn of risks associated with medical care or procedures. Doctors owe both objective and subjective duties to warn; and a good offense is sufficient to fulfill this element in a court of law. For example, the Queensland Civil Obligation Act describes the test laws that incorporate objective and subjective elements. For example, an obstetrician who fails to warn a mother of complications arising from labor may be considered to have violated the obligations of their professional care.
In Donoghue v Stevenson , Lord Atkin states that "the category of omission is never closed"; and at the Dorset Yacht v Home Office it was held that the government did not have immunity from the lawsuit when they failed to prevent the escape of teenagers who then damaged the caramel. In other words, all members of society have an obligation to be careful of others and their property. In Bolton v. Stone (1951), House of Lords states that a defendant is not negligent if the plaintiff's damage is not a suspected consequence of his behavior. In this case, Miss Stone was hit on the head by a cricket ball while standing outside the cricket ground. Finding that no batsman can usually hit a cricket ball far enough to reach someone who stands as far as Miss Stone, the court declares that his claim will fail because the danger is not enough or quite predictable. As stated in the opinion, 'fair risk' can not be assessed with the benefit of the back. In Roe v Minister of Health , Lord Denning said the past should not be seen through rose-colored glasses, found no negligence on the part of medical professionals accused of using contaminated medical bottles, since contemporary standards will show only low probability of contamination medical jar.
- United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir.1947)
For rules in the U.S., see : Calculus of negligence
Intent and/or malicious
Further determination of the provisions of intent or crime where applicable may be applied in cases of major negligence.
Cause
In order for accountability to be caused by negligent or negligent acts, it should be proved not only that injuries are caused by such omissions, but also that there is a sufficient legal relationship between acts and omissions.
Factual cause (real cause)
For a defendant to be held accountable, it must be shown that certain acts or omissions are the cause of the loss or damage suffered. Although the assumption sounds simple, the causes between a person's offense and the loss caused by others can sometimes be very complicated. The basic test is to ask whether injury will occur 'but for', or without, the offense of the accused party to the liability to the injured party. In Australia, the High Court has ruled that the 'but for' test is not an exclusive cause-and-effect test because it can not cope with situations where there is more than one cause of damage. When 'but for' tests are dissatisfied and the case is exceptional, a reasonable test ('What and Why' test) will be applied More precisely, if a person who infringes material materially increases the risk of harm to another party, for the value of the loss he caused.
The asbestos fights that have been going on for decades revolve around the issue of cause and effect. Intertwined with the simple idea of ​​the party causing harm to others is the issue of insurance and compensation bills, which sometimes pushes the compensation company out of business.
Legal cause (immediate cause)
Sometimes factual causes are distinguished from "law-cause" to avoid the danger of exposed prisoners, in Cardozo's words, J., "Indefinite amounts of responsibility for indefinite time for an uncertain class. " It says a new question arises about how far the consequences of a person's harm come from the negligence of others. We say that someone's negligence is 'too far' (in the UK) or not a 'direct cause' (in the US) the danger of others if someone will never 'ever' predict it. Note that 'direct causes' in US terminology (related to the chain of events between actions and injuries) should not be equated with 'proximity tests' under UK care responsibilities (related to proximity of relationships). The idea of ​​the cause of law is that if no one can foresee something bad happens, and therefore be careful to avoid it, how can one be responsible? For example, in Palsgraf v. Long Island Rail Road Co. The judge ruled that the defendant, the train, was not responsible for the injuries suffered by a remote observer. The Plaintiff, Palsgraf, was struck by the scales that fell on him as he waited on the train platform. Scales fell because of the distant commotion. A train conductor ran to help a man to the train that departed. The man carried the pack as he ran to jump at the train door. The package contains fireworks inside it. The conductor misappropriated the passenger or parcel, causing the packet to fall. Fireworks slip and explode on the ground causing shock waves to run through the platform. As a result, the scales fell. Because Palsgraf was injured by the falling scales, he sued the train company that hired the conductor for negligence.
The defendant's railway company believes that it should not be held liable as a legal matter, because regardless of the fact that they hire employees, who are negligent, his negligence is too far from the plaintiff's injury. At the time of the appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant had no obligation to care about the plaintiff, because the obligations were only owned by the plaintiff. The three judges disagreed, arguing, as Judge Andrews wrote, that the defendant owes the plaintiff, irrespective of the estimate, because everyone owes each other the obligation of not acting negligently.
Such a gap in the remoteness element continues to disrupt the judiciary. Courts that follow Cardozo's view have greater control in cases of negligence. If the court can find that, as a matter of law, the defendant has no obligation to care about the plaintiff, the plaintiff will lose his case due to negligence before having the opportunity to submit to the jury. Cardozo's view is a majority view. However, some courts followed the positions filed by Justice Andrews. In jurisdictions that follow minority rules, defendants should express their remoteness argument in direct cause if they want the court to take the case away from the jury.
Remoteness takes on another form, seen in The Wagon Mound (No. 2) . The Wagon Mound is a ship in the harbor of Sydney. The ship leaked oil that makes it slippery in some ports. The owner of the dock asked the shipowner about the dangers and was told he could continue his work because the slick would not burn. The owner of the dock allows the work to proceed on the dock, which sends sparks into the cloths in the lit water and creates a fire that burns the dock. The Advisory Council determined that the owner of the dock 'intervened' in a causal chain, created responsibility for a fire that canceled the shipowner's liability.
In Australia the concept of remoteness, or proximity, was tested in the case of Jaensch v Coffey. The wife of a policeman Mrs Coffey suffered a shock injury due to a motor vehicle crash even though he was not on the scene at the time of the crash. The court upholds it, in addition it can be suspected that his wife may have such injuries, it is necessary that there is sufficient proximity between the plaintiff and the defendant causing the collision. Here there is quite a causal closeness. See also Kavanagh v Akhtar , Imbree v McNeilly , and Tame v NSW .
Injuries
Despite a breach of duty, and the cause of several injuries to the defendant, the plaintiff can not recover unless he can prove that the defendant's offense caused the injury to the money. This should not be confused with the requirement that a plaintiff proves to be dangerous to recover. As a general rule, a plaintiff can only rely on legal remedies to the point that he proves that he is suffering a loss; that is to be expected. This means something more than losing money is an important element of the plaintiff's case in negligence. When damage is not a necessary element, a plaintiff may win his case without showing that he or she is suffering a loss; he will be entitled to nominal damages and other damages according to proof. (See Constantine v Imperial Hotels Ltd [1944] KB]).
Negligence is different because the plaintiff must prove his loss, and certain types of losses, to recover. In some cases, the defendant may not debate the loss, but the requirement is significant in cases where the defendant can not deny his negligence, but the plaintiff does not suffer any harm as a result. If the plaintiff can prove a cash loss, then he or she can also obtain compensation for non-money injuries, such as emotional distress.
Losing money requirements can be demonstrated in several ways. A plaintiff who is physically injured by deliberate and negligent behavior may indicate that he or she should pay medical bills. If his property is damaged, he can show a loss of income because he can not use it, the cost to fix it, though he can only recover for one of these things.
Damage can be physical, pure economic, both physical and economic (loss of income after personal injury,) or reputation (in case of defamation).
In British law, the right to claim economic losses is solely limited to a number of 'specific' and clear circumstances, often related to the nature of the obligations to the plaintiff as between the client and the lawyer, the financial adviser, and other professions where money is essential for consultative services.
Emotional distress has been acknowledged as an actionable lawsuit. Generally, the damage to emotional distress must be parasitic. That is, the plaintiff can recover because of the emotional distress caused by the injury, but only if it is accompanied by physical injury or money.
A complainant who only suffers from emotional distress and does not lose money will not recover due to negligence. However, recent trials allow recovery for plaintiffs to recover only because of emotional distress under certain circumstances. California state court allows recovery for emotional distress alone - even without physical injury, when the defendant physically injures a plaintiff's relative, and the plaintiff watches it.
The eggshell skull rule is a legal doctrine upheld in some legal system of lawsuits, which states that the tortfeasor is responsible for all damages caused, even if the extent of the damage is caused by the unexpected vulnerability of the claimant. The eggshell skeleton ruling was recently maintained in Australia in the case of Kavanagh v Akhtar .
Maps Negligence
Damage
Damage puts the money value on the damage done, following the principle of restitutio in integrum (Latin for "restoration to original condition"). Thus, for most purposes related to the quantification of damage, the error rate in breach of maintenance task is irrelevant. Once the breach of duty is established, the only requirement is to compensate the victim.
One of the main tests asked when negotiating whether the plaintiff is entitled to compensation for a lawsuit, is "a reasonable person". This test is sufficiently clear: whether a reasonable person (as determined by a judge or jury), under certain circumstances, has done what the defendant did to cause the injury; or, in other words, does a reasonable person, acting reasonably, have behaved the same way when compared to the person whose actions caused the injury? Simple as a "reasonable person" test sounds, it's very complicated. This is a risky test because it involves the opinions of judges or juries that can be based on limited facts. However, as vaguely as the "sensible" test seems, it is very important in deciding whether the plaintiff is entitled to compensation for the negligence of the lawsuit.
Damage is compensatory in nature. The compensation compensation addresses the plaintiff's/plaintiff's loss (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The verdict shall make the plaintiff as a whole, sufficient to place the plaintiff back in his position before the Defendant's negligent action. More than that would unlawfully allow the plaintiff to take advantage of the lawsuit.
There are also two other general principles relating to damage. First, compensation should be made in the form of a single payment. Therefore, the defendant does not need to make periodic payments (but some laws provide exceptions to this). Secondly, the Court is not concerned with how the plaintiff used the verdict. For example, if the plaintiff was given $ 100,000 for physical harm, plaintiffs are not required to spend this money on medical bills to return it to their original position - they can spend this money in whatever way they want.
- Damage type
- Special damages - quantifiable losses of dollars incurred from the date of the defendant's negligence (lawsuit) action until a certain time (proven in court). Examples of special damages include loss of wages, medical bills, and property damage such as a person's car.
- Common damage - this is unquantified damage in monetary terms (e.g. no invoice or receipt as there will be a special damage proof). An example of common damage is the amount of pain and suffering experienced by car crashes. Finally, where the plaintiff proves only minimal loss or damage, or the court or jury can not calculate the loss, the court or jury can provide nominal damages.
- Penalty damages - Damage to the punishment is to punish a defendant, not to compensate the plaintiff, in cases of negligence. In most jurisdictions an indemnity can be recovered in an act of negligence, but only if the plaintiff indicates that the defendant's behavior is more than ordinary negligence (ie, naughty and intentional or frivolous).
- Compounded Damage - Unlike the exemplary losses, compensation is given to the plaintiff when damages are exacerbated by the behavior of the defendant. For example, this way of wrong action increases injury by subjecting the plaintiff to humiliation, humiliation.
Procedures in the United States
The United States generally recognizes four elements for omission: duties, offenses, nearest causation and injury. A plaintiff who makes a claim of negligence must prove all four elements of negligence to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one element, the defendant may request a court decision early on, to prevent the case from entering the jury. This can be by way of demurrer, movement to dismiss, or motion for summary judgment.
The elements allow the defendant to test the plaintiff's allegations before the trial, and provide guidance to the fact finder in court (judge in a bench court, or jury in a jury trial) to decide whether the defendant is or is not responsible. Whether or not this case is resolved with or without trial depends again on certain facts of the case, and the ability of the parties to frame the matter to court. The elements of the task and the cause specifically give the court the greatest opportunity to take the case from the jury, as they directly involve policy questions. The court may find that regardless of the disputed fact, the case can be resolved as a legal matter of an undeniable fact because as a matter of law the defendant can not be legally liable for the plaintiff's injury under the theory of negligence.
On appeal, depending on the case disposition and the question of appeal, the court reviews the court's decision that the defendant neglects to analyze at least one of the causes of the action to determine whether it is properly supported by facts and laws. For example, in the appeal of the final decision after the judge's verdict, the appeals court will review the record to verify that the jury has been properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On the appeal of the dismissal or verdict of the plaintiff without trial, the court will review de novo whether the court below correctly found that the plaintiff could not prove one or all of its cases.
See also
- Carelessness
- Criminal negligence
- Great omission
- Intentionality
- Malpractice
- Medical negligence
- Mens rea
- Ignore
- Negligence in English Law
Footnote
References
-
Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Tort Deakin's Law . Oxford University Press. ISBNÃ, 0-19-925711-6 Ã, 789.018.279 [0009] AB001 - Kujinga, Benjamin (2009). "REASONABLE TREATMENT AND SKILLS - MODERN SCOPE OF AUDITOR TASKS". GAA Accounting Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002). "Audit and Auditor". Corporate Law in Australia . Federation Press
External links
- Britannica's 1911 account of negligence: an intriguing reading of history, preceding the era of Buick Motor and Donoghue v. Stevenson .
Source of the article : Wikipedia
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