negligence claims
This note is not intended to be a definitive guide to the law. For further information contact David Vaughan-Birch.
This is the branch of the law that deals with non-contractual relationships where one party is said to have injured or damaged another. It includes personal injury claims, and also claims against professionals like accountants and surveyors.
In order to bring a negligence claim, it is necessary to prove that a number of factors exist;
Duty of care; the party that is alleged to have committed the wrong must have a duty not to do so. Normally this is simple; clearly the driver of a vehicle has a duty to control it. In other cases the duty may not be so clear. For instance, does the owner of private land owe a duty of care to trespassers?
There must be a breach of that duty; the extent of the duty is to take "reasonable" care. What is "reasonable" in the circumstances of the particular case is often an issue between the parties.
The duty must be owed to a particular person or class of persons. The alleged wrongdoer must be able to foresee at the time that a negligent act could affect particular persons or a class of persons. Again, to take the example of a motorist, he owes a duty of care to other road users and to pedestrians and so on. However in other cases the class may not be so clear. For example, the auditors of a company that prepare the annual report (a public document) owe a duty of care to the company itself. But does that extend to other persons who might read that report, such as potential investors?
The person affected by the wrong must suffer actual loss, either personal injury or physical damage. Again this is easy to show for a person injured in a road accident, but some forms of injury simply cause economic loss (such as the auditor’s negligence in the example above). Until comparatively recently the law did not allow recovery of "pure economic loss" at all, but there is now an exception if the claim relates to a negligent misstatement.
If the person making that statement knows that it will be relied upon by an identifiable class of persons, and they do rely upon it to their detriment and suffer pure economic loss, then a claim may be made for that loss. As a result of this, a homebuyer may bring a claim against a surveyor, even though it was the bank that actually paid for the survey and had the contractual relationship with the surveyor. This is because the surveyor knows the homebuyer will read the report and rely on it, and if the report is negligent and the property is worth less than the surveyor’s estimate the homebuyer will suffer economic loss.
The amount of that loss is calculated differently from a contract claim; it is the amount of money that is required to put the injured person into the position he would have been in, but for the injury. This can make a significant difference to the amount that can be claimed. To take the surveyor as an example, if the homebuyer did pay for the report and the surveyor missed some essential repair works that were necessary, then a breach of contract claim could be brought for the cost of those repairs. But if he did not pay for the survey the claim would be in negligence, and the claim would be for the difference between the value of the house with the defects and the value without.