What exactly is negligence? How does the law determine whether someone has been negligent? How is the amount of damages awarded determined?

Negligence is the legal term which applies when a lack of proper precautions by the Defendant (the person being sued) has resulted in an injury to the Plaintiff (the person who is suing). In deciding whether a person has been negligent the Court will consider the following factors:

Duty of Care
This factor is basically a consideration of whether the Defendant had a responsibility to avoid harming the Plaintiff. The Court will consider the relationship between the Plaintiff and the Defendant to decide whether the Defendant should have realized beforehand that his or her action would harm the Plaintiff. For example, a lawyer has a duty not to make mistakes which will harm his or her clients. A lawyer is not responsible however, to prevent harm to the opposing parties in the lawsuit.

Standard of Care
This factor involves considering whether the Defendant took the proper precautions to prevent harm to the Plaintiff. For example, a restaurant owner is expected to keep the floor of the restaurant free from slippery substances. If a patron slips in a pile of grease and falls in the restaurant she will suffer an injury which the restaurant owner should have prevented by keeping the floor clean. On the other hand, if a diner trips over his own shoe lace and falls, he will also be injured, but the Court will likely determine that the restaurant is not at fault. It would not be reasonable to expect restaurants to monitor the shoe laces of each of their customers to ensure no one will trip over a loose shoe lace.

Proximity
This factor considers whether the type of injury suffered is one that should have been foreseen and prevented. For example, if the Defendant, driving recklessly, crashed into the Plaintiff’s vehicle and injured the Plaintiff, the Plaintiff could sue for this injury. On the other hand, if the accident caused a traffic jam which delayed another motorist who was on his way to propose to his girlfriend and, when he belatedly arrived, he found that she had, angered by his delay, already agreed to marry someone else, the jilted motorist would not likely be successful in suing the Defendant. Even though the Defendant caused the car crash and therefore ruined the potential marriage, the Defendant cannot reasonably have been expected to anticipate this kind of injury and take steps to prevent it (yes, this example is based on a real case).

Causation
This factor assesses whether the Defendant actually caused the Plaintiff’s injury. Ordinarily the Court will simply consider whether or not the Plaintiff would have been injured if the Defendant hadn’t acted negligently. Sometimes however, this can be hard to determine. For example, a plaintiff who has been diagnosed with cancer may have contracted the disease because of the dangerous chemicals he was assigned to handle by his employer without proper training. On the other hand, the cancer may have been caused by the Plaintiff’s smoking habit. In these situations, the Court will consider whether the negligence made a significant contribution to the injury.

Damages
If each of the above factors has been proven, the Court will find that the Defendant was negligent. It will then decide how much to award in damages. In doing so, the Court will try to put the Plaintiff in the position he or she would have been in if the Defendant had not been negligent. For example, suppose the Plaintiff earned $40,000 per year and intended to work for 10 more years before retiring. Instead, the Plaintiff was injured in an accident caused by the Defendant’s negligence and is no longer able to work. The Plaintiff now receives a disability benefit of $20,000 per year. The Plaintiff’s damages are therefore $200,000 ($40,000 (would have earned) - $20,000 (actually earned) x 10 years).

If you have been harmed by negligent conduct please feel free to contact us to discuss your legal rights and how to obtain compensation.

Andrew Ostrom contributed to this article.