Negligence in Tort Law
In the realm of tort law, negligence serves as the primary mechanism for holding individuals and entities accountable for careless behavior that causes harm to others. It is not necessarily about an intent to cause harm, but rather a failure to live up to a standard of conduct that protects society from unreasonable risks.
Defining Negligence
At its core, negligence is the failure to exercise the degree of care that a “reasonable person” would have exercised under similar circumstances. In the famous words of Baron Alderson in Blyth v Birmingham Waterworks Co (1856):1
“Negligence is the omission to do something which a reasonable man, guided upon those co2nsiderations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
It is a breach of a legal duty to take care, resulting in undesired damage to the plaintiff.
The Burden of Proof: What the Plaintiff Must Establish
To succeed in an action for negligence, the plaintiff (the injured party) bears the burden of proving four essential elements. If any one of these elements is missing, the case will fail.
Duty of Care
The plaintiff must show that the defendant owed them a legal duty of care. This is often determined by the “Neighbor Principle”—the idea that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor (anyone closely and directly affected by your act).
Breach of Duty
Once a duty is established, the plaintiff must prove the defendant breached that duty. This happens when the defendant’s conduct falls below the standard of a “reasonable person.” For example, a doctor is judged against the standard of a competent professional in their field.
Causation
The plaintiff must prove that the defendant’s breach actually caused the injury. This is often tested using the “But-for” test: But for the defendant’s actions, would the injury have occurred?
Remoteness (Damages)
Finally, the plaintiff must have suffered actual loss or damage. Furthermore, the damage must not be “too remote,” meaning it must have been a foreseeable consequence of the breach.
Alleging Contributory Negligence
Yes, the defendant can absolutely make an allegation of contributory negligence. Contributory negligence is a defense used by the defendant to argue that the plaintiff’s own lack of care for their own safety contributed to the injury or loss.
How it works:
- The defendant admits (or it is proven) that they were negligent, but they argue that the plaintiff was also
Example:
A pedestrian is hit by a speeding car (defendant’s negligence), but the pedestrian was crossing the road while looking at their phone and ignoring a “don’t walk” sign (plaintiff’s contributory negligence).
The Result of Proving Contributory Negligence
If the defendant successfully proves that the plaintiff was contributorily negligent, the result depends heavily on the jurisdiction’s laws. Generally, there are two legal approaches:
Comparative Negligence (The Modern Standard)
In most modern legal systems, contributory negligence is not a total bar to recovery. Instead, it results in a proportionate reduction of damages.
If the court determines the total damages are $100,000 but finds the plaintiff 30% at fault for their own injuries, the plaintiff will only receive $70,000.
| Factor | Calculation |
|---|---|
| Total Assessed Damages | $100,000 |
| Plaintiff’s Degree of Fault | 30% |
| Final Award to Plaintiff | $70,000 |
Strict Contributory Negligence (The Traditional Rule)
In a few jurisdictions, the traditional “all-or-nothing” rule applies. If the plaintiff is found to be even 1% at fault, they are completely barred from recovering any compensation from the defendant. This rule is increasingly rare due to its perceived harshness.
Summary of the Result
When contributory negligence is proved, the court performs an “apportionment of liability.” The judge or jury decides the degree of fault for both parties and scales the financial compensation to reflect those percentages.
Executive Summary: The Law of Negligence
Negligence is a foundational concept in tort law that addresses civil wrongs resulting from carelessness rather than intentional harm. It centers on the “reasonable person” standard—measuring an individual’s actions against what a prudent person would have done in the same situation.
The Four Pillars of a Claim
For a plaintiff to win a negligence lawsuit, they must prove four specific elements:
- Duty: The defendant had a legal obligation to exercise care toward the plaintiff (the “Neighbor Principle”).
- Breach: The defendant failed to meet that standard of care.
- Causation: The defendant’s failure was the direct cause of the harm (the “But-for” test).
- Damages: The plaintiff suffered a real, foreseeable loss or injury.
The Defense of Contributory Negligence
A defendant can defend themselves by alleging Contributory Negligence. This argues that the plaintiff was also careless and contributed to their own misfortune.
Core Concept: Even if the defendant was negligent, the plaintiff’s own failure to exercise reasonable care for their safety becomes a factor in the trial.
The Legal Outcome
If contributory negligence is proven, the result depends on the local jurisdiction’s rules:
- Comparative Negligence (Common): The court assigns a percentage of fault to both parties. The plaintiff’s financial award is then reduced by their percentage of fault (e.g., if the plaintiff is 20% at fault, they receive only 80% of the total damages).
- Strict Contributory Negligence (Rare): If the plaintiff is found even slightly responsible (e.g., 1%), they are completely barred from receiving any compensation.
Written By Judge Nazmul Hasan – Senior Judicial Magistrate | Prime Minister Gold Medalist
Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation’s most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Email: [email protected]
