Negligence is legally Explained
S J Tubrazy
Negligence in the sense of mere carelessness does not, of course, give rise to any cause of action; but carelessness assumes legal quality of negligence p where there is a duty to take care and where failure in that duty has caused damage.
The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.
Lord Wright analysis as, more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.
Duty to take care is, thus, an essential ingredient of the tort of negligence and unless such a duty is established, no case of actionable negligence can arise. “Duty” connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances; and it is a question of law whether or not a duty to take care exists in the circumstances of a given case. The principle for determining whether, in given circumstances, there was a duty to take care was formulated by Lord Atkin in the celebrated case of Donoghue v. Stevenson thus:‑‑
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected ‘by my act that I ought reasonably to have them in contemplation being so affected when I am directing my mind to the acts or omissions which are called in question.”
The principle, thus, enunciated by Lord Atkin is now firmly established as a statement of general principle the application of which may be excluded only if there is a valid explanation for exclusion. In Dorset Yacht Co. v. Home Office, Lord Reid said that when a new point arises, the law of negligence depends on the principle that one should not ask whether it is coveted by authority but whether recognised principles apply to it.