Negligence Claims

Professionals and organisations are required to work with reasonable skill, care and diligence on behalf of the people who engage them or they care for. If the work of professionals, local authorities, the NHS or other similar bodies falls below the expected standard of reasonable care or service then negligence might have arisen.

Making a claim against someone or an organisation necessitates obtaining sufficient evidence to demonstrate that the person or organisation was either at fault, acted inappropriately, did or did not do something which they were required to do (breach of contract), gave an impression about something which was incorrect or breached a statutory duty.

A negligence claim may arise if the following apply:

• Did the defendant owe a duty of care to act or exercise reasonable care?
• Has there been a breach by the defendant of this duty through an act they have done or an omission which there was a reasonable duty for them to perform?
• Has the behaviour of the defendant resulted in injury or damage to the plaintiff?
• The injury or damage which has arisen is this a reasonably foreseeable consequence of the defendants actions or omissions?
• What is the connection or relationship between the defendant and the plaintiff?

What duty of care was owed

A breach of a duty means that in law there existed a Parliamentary Act, statutory instrument, rule, principle or similar which stated how the defendant should treat or behave towards the plaintiff. The defendant knew about this and knew they owed a duty of care and they behaved in a way which breached this duty of care.

• Who owed a duty of care to whom?
• How did they breach this duty of care?
• How did they not exercise reasonable care?
• What else could they have done to reduce injury, suffering, harm, damage?
• What sort of reasons are they giving to justify their actions or non-actions of not following their legal obligations?

Causation (proof of loss as a result of breach of duty)

The plaintiff has to show that the acts or omissions made by the defendant where the cause of the plaintiffs injuries. The chances of recovery where impeded by the actions / non-actins of the defendant. Alternatively it could be argued that the plaintiff’s original condition become worse owing to the intervention / non-intervention by the defendant.

This is the ‘but for’ test. ‘But for’ the defendants intervention or non-intervention then no harm, injury or damage would have arisen. There can also be partial intervention / non-intervention. This is where the actions or non-actions of the defendant were a contributory factor to a breach but they were not only responsible for this, another person or party was also involved in what happened / did not happen. This also needs to be a sufficient connection between the act or non-act of the person or body and the negligence committed against the plaintiff.

• What did they do or not do which caused harm, injury or damage?
• Who in particular was supposed to do something or should have intervened to prevent harm, injury or damage?
• What specific examples are there of instances when someone did or did not do something which then led onto harm, injury or damage?
• Was there a failure by several bodies or people working / acting together which collectively led to harm, injury or damage?

Res Ipsa Loquitur (the facts speak for themselves)

Looking at what happened to the plaintiff, what happened in the ordinary view of things, itself shows that a negligence arose. Such situations of claiming that Res Ipsa Loquitur arose are often challenged by expert evidence showing that another person in that circumstance would also have behaved in a similar way. A defence to Res Ipsa Loquitur is that there is a plausible explanation for what happened. A further defence is that the defendant exercised, on the balance of probabilities, reasonable proper care. Also that the outcome was not anticipated or was a rare occurrence.

Limitation period

Claims need to be made within three years of the alleged event occurring. Alternatively the date at which the knowledge of the event came to light. For example, a patient might be treated in hospital and the doctor performs the wrong operation and the plaintiff realises it is the wrong operation at the time. Limitation time runs from the date of the wrong operation. If though the same operation is performed and the plaintiff did not know it was the wrong operation and only found out about it 5 years later on, limitation time runs from this date.

Loss and Injury

Did the defendants actions / non-actions cause the loss or injury suffered by the plaintiff. If the plaintiff can only show they suffered a loss then they may be entitled only to nominal damages. Alternatively if they suffered injury further damages may be claimed. In negligence the loss or harm / injury must be proved. Did the plaintiff have to pay money to have the damage caused repaired. Was the plaintiff’s life affected by the actions / non-actions of the defendant in that they did something which needed rectifying. Was the plaintiff placed at a disadvantage by the actions / non-actions of the defendant which meant they missed out on something or could not partake of something. In principle an injury should be reasonably foreseeable consequence of the defendants actions / non-actions.

Claims can be made for both financial (pecuniary loss) and non-pecuniary injuries for example emotional distress. Emotional distress would usually be claimed along side other forms as loss.

A defence to a claim of injury can arise if the injured person lacks mental capacity. It may be claimed as they do not understand what is happening around them, do they understand that they have been injured. To challenge this it would be a matter of showing that there was distress or a physical injury committed by the defendant which the plaintiff was aware of.

• How were they injured or suffered loss?
• What sort of injury or loss was this?
• Could this injury or loss have been foreseen and how might the defendant warded / prevented against this?
• Was their emotional distress and was this attached to other forms of loss or injury?

Reasonable Test

In the given circumstances of an event, would the reasonable person have acted or behaved as the defendant did. This is quite a complex test in deciding if the plaintiff is entitled to damages.

• Given the events how would a reasonable person have acted in those circumstances?
• Would another professional / local authority / NHS or other body have acted in the same or similar way towards them?

Damages

Once a breach of the duty is established in law to have arisen. Once established damages may be claimed.

Damages in essence come in different forms - general damages, special damages, nominal damages, punitive damages and aggravated damages.

1. General damages - these are not quantifiable in monetary terms and are often calculated based on suffering, experience or loss incurred.
2. Special damages - these are actual quantifiable losses which the plaintiff suffered, such as the cost of a repair to rectify something.
3. Nominal damages - often awarded where there has been a loss but one which is not quantifiable.
4. Punitive damages - these are used to punish the defendant more than compensate the plaintiff.
5. Aggravated damages - these can be awarded where the harm suffered is made worse by the behaviour of the defendant.

• How did they suffer loss?
• But for the defendants intervention how would they have been?
• If the defendant had been another local authority / NHS would this suffering / harm still have arisen?
• What made this local authority different from other local authorities in how they intervened or behaved towards them?