Page 25 - Insurance Times May 2019

Existence of a Legal duty the negligence act and the infliction of damages. The cause
of unbroken by any new and independent cause which
To protect others from harm and to be guilty of negligence
there must be a legal duty or obligation or to protect others produces an event that otherwise would not have occurred.
from harm and fails to comply with standards of care to There must be an unbroken chain of events between the
protect others from harm. A duty of care is the obligation negligent act and the infliction of damage (Sign board falls
to avoid careless actions that could cause harm to one or from the building and injures the passing pedestrian)
more persons. The presence of a legal duty of care rule must
be satisfied - this duty is imposed by law and is determined However, there is a difference between legal causation (for
by the behaviour and care for others that a reasonably which there is liability) and factual causation (for which
there may not be any liability). An act may sometimes cause
prudent individual is expected to have. For example; a
injury to a plaintiff, but, it was not reasonably anticipated
property owner owes the greatest degree of care to the
people who are on his premises with his permission and for that the plaintiff would be injured. Also sometimes when
his benefit. However, a trespasser gets hurt while moving an act sets off a chain of events that ultimately injures the
in owner's property. The trespassers stand little chance of plaintiff, but, the plaintiff is very far removed from the
getting compensation for their injury since they have walked original act, the act is the factual cause and not the legal
into another person's property uninvited. cause needed to impose liability on the defendant.

Defences to Negligence Liability
Breach of Legal duty
Even if the plaintiff has sued the defendant for breach of
Once it has been recognised that the duty existed, then, it
must be determined whether that duty was in any case duty and has proved the proximate cause, certain defences
breached. A duty has been said to be breached when a can still be raised by the defendant that can help him in
defendant has knowingly exposed another to severe reducing or eliminating his liability. These defence
damage. As in the case of a civil engineer (see above, techniques include:
Y Contributory Negligence
existence of a legal duty) who was aware of his fraud while
making the bridge, put the lives of innocent public in Y Comparative Negligence
danger. While construction of the bridge he did not realise Y Last clear chance Rule
that he was exposing others to harm, whereby in this
Y Assumption of Risk
circumstance a normal reasonable man could have
foresighted the danger. Later the public alleged him and
charged for failing to provide the adequate 'standard of Contributory Negligence -
care'. In this type of defence technique the defendant can prove
his negligence by providing evidence which shows that he had
Failure to perform that duty taken adequate 'standard of care' and his actions did not
contributed to the plaintiff's damage. Additionally, the
Your action would be compared with an action of a
defendant may be able to prove that the plaintiff has
reasonable prudent person under similar circumstances and
contributed to his own injury. If both parties are to blame in
a defendant's conduct can be either a positive or negative
a given accident, each is guilty of contributory negligence and
act.
may not collect against the other, even if the defendant was
Y Act of positive - a reasonably prudent would not do. 90 per cent to blame and the plaintiff was only 10 per cent
to blame and hence, under this contributory technique no
Y Act of negative - simply failure to act, your fail to do one is liable to claim damages from the other party.Both
something that a reasonably prudent person would parties contribute to the cause of tort. At common law it is a
have done.
complete defence and damages are reduced by court to such
an extent as they think just and equitable having regard to
Proximate Cause Relationship the share of responsibility in the injury and damage.

The last and most interesting element in the negligence case
is that even after the existence and breach of duty and even If the injured person/s conduct falls below the standard of
if the plaintiff is suffering from injury, until the source of care required for his/her protection and such conduct
damage is not identified in reality there will be no contributed to the injury, the injured person cannot collect
compensation. Proximate cause is the relationship between damages under strict common law, if you contributed in any

The Insurance Times, May 2019 25