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Negligence in Law Essay

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Updated: Mar 14th, 2020

The elements of a negligence cause of action

Various common law jurisdictions reflect minor differences in classifying the elements of negligence. Despite the slight differences, it is evident that the elements of “duty, breach, causation and damages” cut across all jurisdictions. However, conceptually, negligence can be viewed as having three elements, damages, causation and conduct.

Other observers remark that the elements may be four or five depending on one’s background. When referring to four elements, the focus is on “duty, breach, causation and pecuniary damages” while when referring to five, attention shifts to “duty, breach, actual cause, proximate cause, and damages” (Shanley, 2005).

Description of the elements

Duty of care

Duty of care is the element which requires that a party minds how commission or omission is likely to affect other parties. The case of Caparo v. Dickman underscored how the duty of care is proven. In the first instance, there must be harm, which should be reasonably foreseeable.

Secondly, there should be an association of proximity between the defendant and the plaintiff. Then thirdly, it should be determinable that imposing liability is not only fair but it is also reasonable and just (Shanley, 2005). As an example, a driver owes passengers a duty of care.

Breach of duty

The second element of negligence is the breach of duty. After determining that a defendant owes a claimant a duty of care, the next issue revolves around the settlement of whether the duty was breached. The process of settling this is both objective and subjective, aspects that compound the element.

As an illustration, the subjective aspect is captured by the case of an accused, who knowingly exposes a claimant to risk or breach of duty. On the other hand, objective breach of duty surfaces when a defendant fails to note that loss or risk to a plaintiff is likely in circumstances, which a reasonable individual should.

However, breach of duty occurs if the defendant acts, pose a reasonable risk but fails to exercise caution to protect claimants. Additionally, the consequences must be reasonably foreseeable (Shanley, 2005). An example would be the failure to install working breaks in a vehicle by a manufacturer.

Factual causation

The third element is based on causation. Factual causation or direct cause reflects on circumstances under which a party is held liable. In this regard, it should be demonstrable that acts of commission or omission must directly lead to the loss or damage experienced.

Since it is difficult to determine the correlation between the breach of duty and loss, it is necessary to establish whether the damage could have occurred in the absence of breach of duty (Shanley, 2005). An example is suffering from a car accident because of negligent driving.


The other important element of negligence is harm. In addition to breach of duty and loss to a defendant, a claimant must prove that the defendant’s acts caused injury. Put in pedestrian terms, the plaintiff must prove suffering harm based on the acts of a defendant. Proving that loss was incurred is necessary for seeking damages (Shanley, 2005). As an example, after being involved in a road accident, the victim must prove to have suffered an injury.

What types of damages are allowed for a negligence cause of action?

Commonly, damages assign monetary values on the loss incurred or the harm suffered. The main aim of damages is restoration. Damages are of three main types. The types include special damages, general damages, and punitive damages. Special damages represent quantifiable compensation paid for losses suffered commencing on the date the defendant acted negligently until the trial time.

Such may include medical bills or lost wages. On the other hand, general damages are not quantifiable in monetary terms. An example of general damages may include the level of pain suffered due to a loss. In these cases, courts award nominal damages since quantification is difficult.

Thirdly, punitive damages are intended to punish offenders as opposed to compensating the plaintiff. Punitive damages are awarded in cases such as where malicious wrongdoing or recklessness is established (Shanley, 2005).

Explain how comparative fault works?

Comparative fault is a principle that is used in apportioning blame to parties who contribute to an act. In this regard, the negligence of a plaintiff is weighed against that of the defendant(s). However, the plaintiff may not be in a position to get damages out of all the defendants. As an illustration, a bankrupt individual and a corporation may hold responsibility for causing harm to a plaintiff.

In such a scenario, one of the two parties may be ordered to compensate the plaintiff. Variously, comparative fault is comparable to contributory negligence, which applies to conduct of an injured party, which falls below expectation. If such conduct does not comply with the expected standards and subsequently plays a role in the injury suffered then the law considers this. The assumption in such cases is that different parties are at fault (Digges and Klein, 2003).

What is the difference between pure and non-pure comparative fault?

Regarding pure comparative fault, one can regain in a negligence act irrespective of the extent of one’s fault. As an illustration, if a party was at eighty-five percent faulty regarding a certain accident, it is still possible to prefer charges against the other party responsible for the fault by fifteen percent.

About a modified comparative fault, a party can recover in as far as the level of the fault was less than fifty percent. By way of illustration, if one is at fault by forty-five percent, this party has a chance to recover. However, if the party was at faulty by fifty-one percent, recovery is impossible (Digges and Klein, 2003).

What is Negligence Per Se?

Negligence is a form of conduct that belies the expected standards of action set by law. It is noticeable that the law sets standards of action to protect individuals from unreasonable danger of harm. It thus emerges that a person is negligent if such individual fails to conform to the expected standards of behavior demanded by society to guarantee safety to each.

Additionally, the aspect of intention to cause injury or harm does not apply to negligence (Abraham, 2002). The main point under the discourse of negligence centers on the idea that people should take reasonable care while acting. This is premised on the notion that individual deeds may pose harm to other people.

As such, measures must be put in place in a bid to lower chances of causing foreseeable harm or loss to third parties. If these requirements are flouted and people are injured, then such individuals should seek legal redress by filing cases to demand damages.

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