Negligence and the duty of care

Negligence and the duty of care

Liability for negligence involves more than a mere lack of care. In order to succeed in a claim for negligence, the claimant has to prove several elements, including the following:

 

  1. A legal duty of care (a duty to take reasonable care) was owed by the defendant to the claimant;

 

  1. There was a breach of this duty;

 

  1. The breach of this duty caused the defendant to suffer loss;

 

  1. The loss is of a foreseeable nature.

 

The question of whether a legal duty of care is owed depends on several factors. For instance:-

 

  1. The nature of the damage caused.
    1. Suing for the recovery of pure monetary losses that did not arise because of any physical damage to property is generally fraught with difficulties.
    2. Recovery for psychiatric or mental harm is typically more difficult than for physical harm.

 

  1. Who the defendant is.
    1. Generally, under the “neighbour principle” formulated by Lord Atkin in Donoghue v Stevenson, a defendant must avoid acts or omissions which would foreseeably harm persons who are so closely and directly affected by his acts or omissions that he ought to have them in mind as being so affected.
    2. However, where a defendant is carrying out a public function or providing great social utility (e.g. rescuers) for instance, the courts would generally be more sympathetic and reluctant to let a negligence claim succeed.

 

  1. The nature of the defendant’s conduct. It is possible to be held liable for negligence without having done anything. These situations are known as omissions. In some situations where the law imposes a duty, a failure to act can result in negligence. However, the factual situations in which failure to act results in negligence is not as common as negligent acts.

 

Singapore law generally adopts a 2-stage test to determine if a duty of care is owed. The first stage is to determine if there is a degree of proximity between the claimant and the defendant. Proximity can be vague and might suggest some kind of pre-tort relationship or some factual foreseeability of potential harm.

 

For instance, if a defendant threw a heavy object down from the tenth floor, it would be foreseeable that potential harm might befall a passer-by. Such a defendant would thus owe a legal duty to take care in this scenario.

 

The second stage involves the courts weighing public policy considerations to determine if imposing liability is desirable. For example, if finding the defendant liable of negligence would be an affront to social values or would cause the court to be flooded with a large number of unmeritorious cases, the claim for negligence might not succeed.

 

Each case will inevitably depend on its own merits so the above is for general information only. You should seek legal advice from experienced criminal lawyers in Singapore in relation to your specific situation.

 

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