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The Law of Negligence

(Does confusion provide a potential safety zone for the culpable professional?)

Over many years, I have had the benefit of listening to some interesting observations about the law of negligence. Just recendy, I attended another lecture on the subject. The lecturer clearly knew the subject very well. Case upon case was quoted to identify some point or the other. The words of this judge and that judge were quoted to demonstrate the state of the law at present. In addition, the art of divining was used in order to give some observations about the future. And, I found it all very interesting.

The underlying message of most of that which I have heard is simple: there is a lack of clarity as to the true position on negligence.

Indeed, the impression that I have is that the vast build-up of judicial opinion on the subject is the equivalent of providing a kind of grand treasure hunt for those concerned with dealing direcdy with the law as lawyers and judges; and a kind of dismal lottery for those who come into contact with the law of negligence as one of the parties to a case before the court.

It seems that on one hand it is difficult to escape fi:om the thought that the law of negligence is very complicated and quite unsatisfactory and, moreover, that something should be done to achieve greater clarity or consistency. However, on the other hand, upon deeper analysis one has to conclude that the law of negligence is, in context, quite simple.

I suppose that ultimately the concept of negligence can be cut down to the simplistic dictionary definition of being a culpable omission of a positive duty. Thus, we need the duty of care on the part of one person to another person; we need the breach of that duty; and we need the consequential damages. Unfortunately, among these three factors it seems that a nice distinction between law and fact is not present. I have heard it said that the three factors are just three different ways oflooking at the same problem. This is possibly why we are faced with the great mass of conflicting judgments?

At least in times long past, the question of negligence was a matter of fact for a jury. The role of the judge, as I understand it, was about deciding if there was evidence from which negligence could reasonably be inferred. If the judge made a positive decision about that, then the outcome would be a matter for the jury. Thus, historically, it seems that the level of reasoning which was attached to a judgment was related simply to that initial process by the judge because the decision by the jury on the facts came after the judge's reasoning; and, of course,juries did not give reasons.

These days, of course, in civil cases the judge handling the case has to decide everything and the reasoned judgment has to cover the whole of the decision making process. No wonder there seems to be more and more confusion than ever; especially for the layman. Even some lawyers who are skilled at separating out the important decisions on law, which are direcdy pertinent to the case, fi:om the judge's passing remarks upon the law and, moreover, who are also skilled at separating facts ttom law seem to be left confused with it all; at least, that must be the underlying theme of the lectures which I have heard.

With these things in mind, and with lawyers often being uncertain about how to advise on the outcome of a case for negligence, save to give advice that it is not at all clear, perhaps one should conclude that the burden placed upon a judge is a very onerous one; perhaps too onerous. Perhaps one should conclude that once a judge has decided that there is evidence fi:om which negligence could reasonably be inferred, then the question of negligence should go to arbitration, or, at least, go to some other separate fact finding procedure.

All of the lectures on this subject lead me to a couple of simple conclusions: (i) if someone has been negligent, then the law of negligence and the trial at court may not be the worst outcome for the wrongdoer; and (ii) if someone has not been negligent then it would be unwise to conclude that the court would be a protective harbour.

Or in the alternative, to the extent that (ii) above is said to be wrong, it would mean the greater likelihood that (i) above is more true and, thus, the judicial procedure for dealing with the law of negligence is biased against the victim of the negligence by providing a potential safety zone for the culpable professional.

From a lay perspective, it all seems very uncertain. However, there is one thing which I believe I can be certain about, namely: of all the cases which I have read and which I have heard experts give lectures upon, I cannot recall one occasion where the culpable professional person was facing a claim of negligence in court because he or she did not understand the law of negligence. All of them found themselves in court because they did not attend to their own professional duties properly in some way or other. In short, at the time of committing the negligent act they were not aware that they had done the work or something improperly; or, at least, they were not aware that what they did do would have the consequences subsequendy considered by a court when dealing with a claim for negligence against them.

From this conclusion, I can only say that time spent by professional people on trying to do their own job properly will be more rewarding than time spent on trying to understand the mass of conflicting judgments on the law of negligence.

Francis Miller, Newsletter
The Chartered Institute of Arbitrators
August 2004

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