Elements of Negligence

The idea of caring for your neighbor or being reasonable is mostly viewed as social norm or part of what you expect in a religious doctrine or dogma. Does it really have a place in a legal system? Look at this case:

Example

Lady Nadia went for child delivery at Bado hospital, upon arrival and examination, the doctor recommended that she would undergo an emergency caesarian section. The doctor successfully carried out the operation. Two days later she had persistent pain and after undergoing an x-ray examination in Sasa Hospital, it was discovered that the doctor had forgot a small pair of scissors in her womb

Lady Nadia is aggrieved and intends to sue the doctor…Advise her

Negligence pops to mind if you look at the case. But you only succeed in an action for negligence if you can prove the existence of the elements of negligence in the above or any case you are dealing with.

What is negligence?

In its simplest form, negligence is doing something that a reasonable person will not do, or not doing something that a reasonable person will do. In essence it can be an action and it can also be an omission.

Negligence stems for the law of tort and a tort is an act which causes harm to a determinate person whether intentional or not, not being a breach of a duty arising out of a personal relationship or contract, and which is either contrary to the law, or omission of a specific legal duty, or violation of an absolute right.

But in legal system claiming that one did something is one thing, proving it is another and it’s the proof that really matters.

What are the Elements of Negligence?

In order to prove the existence of negligence you have to prove the following 3 elements of negligence unless the doctrine of Res ipsa Loquitur is applicable. The elements are:

• Duty of care
• Breach of duty of care
• Injury to the plaintiff

Here is how these elements of negligence work

#1 The duty of care

The first thing you have to know is whether a duty of care exists between the parties or not. Duty of care imposes that, you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor

Who is your neighbor?

The legal answer seem to be persons who are so closely and directly affected by your act that you aught reasonably have them in contemplation as being so affected when you are directing your mind to acts or omissions which are called in question

There is a 3 part test to the existence of duty of care

1. It was reasonably foreseeable that a person in the claimant’s position would be injured
2. There was sufficient proximity (closeness) between the parties
3. It is fair, just and reasonable to impose liability on the defendant

So …did the doctor in the case at the introduction owe Nadia a duty of care?

#2 breach of duty of care

By breaching a duty of care it means you have fallen below the standard of care. Standard of care means the standards through which the defendant’s conduct is measured.

Courts will take the following factors into account when looking for a breach of duty:

1. The degree of risk involved – basically the greater the risk the more the defendant has to take care
2. The cost of precautions
3. Potential seriousness of injuries
4. The importance of the activity

#3 Injury to the plaintiff

The final thing is that the plaintiff has to prove that he/she was injured as a result of the defendant’s action or omission

Conclusion

So with negligence you have to show all the 3 elements of negligence otherwise the action you are bringing against the defendant will fail.