Negligence

Breach of duty of care gives rise to a cause of action for negligence in common law. To establish negligence a plaintiff has to establish four elements: Duty of care, standard of care, causation in law and causation in fact.

The general rule for duty of care is that every person has to take reasonable caution in their actions to prevent unreasonable harm to those whom might be affected by his or her actions. This is sometimes referred to as the neighbor principle. In deciding whether or not a person owes another person duty of care many factors are considered, such as foreseeability of the harm sustained, the relationship between the parties and whether or not there was a statutory or contractual duty imposed on the parties with respect to each other. It is noteworthy that in some cases general policy considerations could negate an existing duty of care.

If a person creates unreasonable harm, it is said that he or she has breached the standard of care. Therefore, one can think of standard of care as the minimum amount of caution that must be taken in the course of one’s action.

Causation in law, also referred to as remoteness, focuses on the type of harm that was caused due to breach of standard of care. If the type of harm is foreseeable in a person with ordinary fortitude, then causation in law can be established. Examples of types of harm are: Economic harm, physical harm, psychiatric harm etc.

Last step for establishing negligence is to prove causation in facts. While the imputed action doesn’t need to be the sole cause of the harm that was sustained, it must be shown that it substantially and materially increased the risk or caused the harm before causation in facts can be established.

Once negligence is established, the defendant will be liable for the damages that were sustained by the plaintiff.

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