Islington Solicitors

What is negligence?

There are three basic elements to negligence:

• A legal duty to take care owed by a person, persons or an organisation to other
• A breach of that duty
• Damage suffered as a result of the breach

Negligence covers a vast amount of situations (too many to state here) and often depends on the individual circumstances of the case, so it can be tricky to pinpoint whether negligence has actually occurred or not.

What is a duty of care/duty to take care?

A duty of care can be thought of as a special relationship that exists between one person or organisation and another, and that relationship imposes duties on one or both parties.  The nature of the duties is decided by the surrounding circumstances of the case.

In the law, there is a three stage test which assesses the proximity of the relationship; asks whether the negligent party could foresee the consequences of their lack of care and, finally, questions whether it is just and reasonable to impose a duty of care, given the surrounding circumstances.   The last question with regards to justice and reasonableness can be difficult to pin down.  Various things need to be considering, such as the age of the defendant; a 12 year old child can only be expected to show a level of care that 12 year olds can.  Policy is another consideration. For example, in a case with regards to police negligence and the “Yorkshire Ripper”, the courts decided that imposing a duty on the police to protect every single member of the public from crime would be impracticable and potentially damaging to police operations.

So, in summary, if the relationship is sufficiently proximate; the negligent party could foresee the loss of the other and there are no policy reasons against imposing a duty, it is likely that a duty of care exists.

Do local authorities owe a duty of care?

It really depends on the type of local authority that is being dealt with and the nature of the duties they owe.  As a rule, local authorities are not under a duty of care to carry out statutory functions that are discretionary.  Confusingly, however, if a local authority shows a lack of care in exercising their discretion, they might be liable in negligence.  As is per usual with cases concerning public bodies, questions of justice and reasonableness are important and where appropriate, the Human Rights Act may come into play.  For example, in cases of local authorities not acting to prevent child abuse, the courts have decided that such treatment could amount to “inhuman and degrading treatment.”

In other cases concerning emergency services, surprising results can happen.  The fire services are not usually under a duty to accept an emergency call and if they do accept a call, they may only be seen as negligent if they exercise a lack of reasonable care in tackling the fire and cause more damage.  However, the ambulance service may in certain circumstances be negligent.  If they answer a call, then at that point a duty of care between the ambulance service and the patient comes into existence.  If the time taken between answering a call and reaching the patient is unreasonable (if the ambulance is involved in an accident, they might be seen to have made reasonable efforts), and the patient suffers further injury or death as a result, the ambulance service could be liable.

What do you mean by professional negligence?

Professional negligence concerns any professional who carries out a service for the benefit of others and that service falls below standards that are reasonably acceptable.  Again, we have to go through the simple three stage test, although the fact that professional relationships are usually contractual will often mean it is not too difficult to find that a relationship exists where a duty of care is owed.

Let’s look at example to see how the law works in practice.  If I were to contact a solicitor and instruct him to modify my will and he accepted those instructions but did not do so in a timely manner resulting in my loved ones not receiving my assets after I die, then the solicitor would potentially be negligent.

What do you mean by medical negligence?

Medical negligence is a type of professional negligence that is subject to its own set of rules, although the basic three stage negligence test is relevant.  If the basic threshold of negligence has been reached, then the question that needs to be answered is whether it is reasonable to impose a duty of care of the doctor or nurse.  The courts do not see themselves as knowledgeable enough to assess whether a medical professional should have acted in a particular way in a particular situation, so the question they ask is whether the actions of the medical professional are backed up by a body of medical opinion that are knowledgeable with regards to a particular type of treatment.   Even if there is a body of medical opinion which holds an opposite view to another body of opinion, the court may deem negligence did not take place.  If, however, there is no supporting medical opinion, then the doctor or nurse may have acted negligently.  This is not something you should assess by yourself, making professional negligence advice an absolute necessity.

Follow this link for the main negligence page.