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Negligence

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Negligence is a type of non-intentional tort where injury is caused by an act that a reasonable person would not have committed, or the failure to do something that a reasonable person would have done. To establish this tort, the plaintiff must establish the following:

  • That a duty of care was owed to the plaintiff;
  • That the defendant breached that duty of care by doing or not doing something a reasonable person would have done or not done in that situation; and
  • That actual damages occured as a result.

Generally speaking, defendants in a negligence action are only liable for those damages that directly flowed from their act or ommission. They are not liable for damages that are not reasonably forseeable from a breach of their duty of care. For example, a person who drives a car into a store is liable for the repair of the store and the damaged goods, but is not liable for the store's lost business during repairs. Similarly, if a ship owner damages a bridge, it is liable for the cost of repairing the bridge, but not for the inconvenience or losses to those persons who use the bridge.

A negligence action against a practicing professional, such as a doctor or lawyer, is usually framed in malpractice. Professionals are held to a higher standard of care - that of a reasonable practitioner of the profession. This can generally only be proved through the use of expert opinion witnesses, whereas ordinary negligence is generally within the knowledge of anyone who might sit on a jury.

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