The Law of Negligence – simplified (part I)
Recently I observed a relatively senior judge confusing himself regarding the principles of personal injury law. I will return to his mistake at the end of this blog but, in working out where he, and it has to be said, many others, became confused, I had to take a step back and break down the principles of negligence and personal injury law, namely:-
- Is there a duty of care or statutory duty?
- Was the law broken / duty breached?
- Did the breach of duty cause any loss?
- Was harm foreseeable?
- What loss did the negligence cause?
I will discuss the points 1 and 2 in this blog, points 3 and 4 in part II, and point 5 and summize in part III.
1. Is there a duty of care or statutory duty?
For a law to be broken there must of course be a law; however, not each and every part of our society and daily lives are governed by laws made by Parliament. It is true that Parliament makes many laws; examples would include The Defective Premises Act 1972, The Highways Act 1980, The Occupier’s Liability Act 1957, The Manual Handling and Operations Regulations 1992, and many, many more. When Parliament makes a law it is generally referred to as an “Act” or “Regulations” (they tend to be called “Regulations” when they are a copy of a European law and an “Act” when they are a new law designed by the UK Parliament).
Once such an Act or Regulations comes into force there is then a set law, or “duty”, that governs a particular situation and if somebody breaks that law or duty they will either be liable to pay financial compensation to the other party, or in some cases there may be criminal repercussions as well of or instead of.
Section 41 of the Highways Act 1980 states a local authority must keep highways safe for ordinary traffic. If a pedestrian encounters a hole in the pavement and suffers injury as a result then this law or duty will have been broken (there is a defence that can be used but that is outside the scope of this blog).
But it is of course not possible for Parliament to legislate over every aspect of our interactions with each other. For this reason many legal duties or laws are not set out in “Acts” or “Regulations” but are accepted principles of law in the courts nevertheless. This is what is sometimes known as “common law”. These types of laws normally come from a higher court and then lower courts have to follow the example set by higher courts. Examples would include the duty to drive with reasonable care, the duty of an employer to provide a safe system of work, the duty of a medical professional to practise to a standard reasonably expected of their position.
There are therefore two ways in which laws or legal duties to one another come into being: either via Parliament or from a senior court.
2. Was the law broken/duty breached?
This issue is referred to as “liability”.
Sometimes this is very easy to work out because the law will be clear and easy to apply to the facts. A classic example is someone who has not left sufficient stopping distance between their vehicle and the one in front resulting in the well versed “rear end shunt”. Here the approach of the courts is almost exclusively that the person behind breached the duty of care to drive with reasonable care (in other words – broke the law).
Some situations however, such as whether an employer complied with a particular law such as The Noise at Work Regulations 1989 can be very difficult to work out as expert engineering evidence will be required to determine what the noise levels were likely to have been at certain points in history, in situations where there is often little evidence to go on.
Aston Knight Solicitors Bury are a specialist personal injury practice with a particular focus on serious injury cases. If you would like to know more please feel free to contact us at either firstname.lastname@example.org or by telephoning on 0800 999 6661. We are always happy to provide a free initial consultation and no-win-no-fee agreements.