The sometimes complex and convoluted uses of words in the legal profession are designed to convey particular meaning to those who understand the full legal definitions of the word. In the case of negligence in a common law setting the word imparts to those who understand a particular set of conditions that must be met for negligence to be present in common law.
Common law is a set of precepts and precedents that date back before English colonisation of Australia. These founding formulations guide common law practice in most of the western world. From Australia to the United States to The United Kingdom there are many similarities in common law definitions and practices. In the case of negligence there are four common themes or aspects that define what must be present for negligence to be used accurately.
There are four component parts that make up common law negligence. If one of these four parts is missing then there is no negligence present.
- Breach of Duty
The first aspect of negligence is that there is a duty of reasonable care or legal obligation present when performing any act that may conceivably cause harm to another. This applies to anything from driving your motor vehicle to applying a friend’s makeup to cooking for other people. We expect that others will not crash their vehicle into ours, will not poke us in the eye with a mascara brush, nor use food that is out of date in their cooking. These expectations are generally set in law, or have a code of conduct that outlines how we should interact with one another when interacting in any form of human activity.
Breach of Duty
A breach of duty occurs when one of the codes or laws governing our interactions are broken. To use the above examples, a breach of duty occurs when someone else is distracted and crashes their car into ours. It occurs when the beautician does not pay attention when applying makeup. It occurs when the chef does not look at the expiry date of an ingredient and serves it. They have all failed in their duty of care or responsibility to others in their respective fields.
This occurs when there is causal link between the breach and the incidence of damage. If there is no damage caused then there is no causation.
Again to use our examples; if the car that ran into yours did no harm at all, no paint was scratch, none of the panels damaged and no injury occurred, just a light touch on the rear bumper then no actual harm has been caused. Just as with the make up artist, if they do not pay attention and mess up the eye line, but do not harm you in any way then no causation is present – they may have to redo the makeup but you have not sustained any injury. The example with the chef is a little trickier. If the ingredient in question was say a spice, such as pepper, which by law must have an expiry date but may not be harmful once the expiry date has past and no one suffered from it then there is no injury caused.
In these scenarios they are lucky enough they have not caused any harm in their breach of duty.
If there is damage caused by the breach of duty then there is clearly negligence at play. If the car has damaged yours, or has caused injury to one of the occupants that can be proven as a fact in evidence, then there is a case for negligence. If the beautician perforates your eyeball with the mascara wand then there is clearly damage caused through negligence. Just as with the chef, if they served tainted meat and everyone in the restaurant became violently ill then there has been damage caused and a case for negligence.
It is only when all four of these aspects present is there a clear case for negligence. If any one of these elements is missing there is no negligence present as defined in common law.
Disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended as legal advice. All individual circumstances will differ and such should be discussed with a lawyer. For legal advice pertaining to your particular circumstances or regarding the information provided please contact us here.