Tort of Negligence: Legal Definition, Types, Duty of Care and Breach of Duty

What is Negligence?

Negligence is the failure to exercise the level of care that a reasonably prudent person would in similar circumstances, resulting in harm or damage to another individual or property.

The Legal Framework of Negligence

This concept forms the basis for many personal injury claims and lawsuits, where determining negligence is central to establishing liability.

Negligence is a key concept in tort law, a branch of civil law that deals with situations where one person’s actions cause harm to another.

It refers to a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances, leading to unintended harm to another party.

At its heart, negligence is about carelessness that results in harm. Unlike intentional torts or criminal acts, negligence does not involve a wilful intent to harm, but rather a breach of duty to act responsibly, resulting in damage or injury to another.

Core Elements

To prove negligence in a legal setting, the plaintiff must establish several key elements:

  • Duty of Care: The defendant owed a duty of care to the plaintiff. This duty varies depending on the relationship between the parties and the situation. For example, doctors owe their patients a duty to provide competent medical care.
  • Breach of Duty: The defendant breached that duty through action or inaction. This is often the most contested part, where the plaintiff must show that the defendant’s behavior was not what a reasonably prudent person would have done under similar circumstances.
  • Causation: The defendant’s breach of duty caused the plaintiff’s harm. This includes both actual causation (“but for” the defendant’s actions, the harm would not have occurred) and legal causation (the harm was a foreseeable result of the defendant’s actions).
  • Damages: The plaintiff suffered actual harm or damage as a result of the breach. This can include physical injury, financial loss, or other types of harm.

Read post: What is the Eggshell Skull Rule? Legal Rationale and Application in Tort Law

Can A Government Entity Be Sued For Negligence?

A government entity can be sued for negligence, but there are limitations and special conditions. Under the doctrine of sovereign immunity, government entities are often protected from lawsuits unless they consent to be sued.

However, many jurisdictions have statutes, like the Federal Tort Claims Act in the United States, that waive this immunity in certain cases, allowing individuals to sue government entities for negligence.

These cases typically involve specific criteria and procedural requirements that must be met for the lawsuit to proceed.

Types of Negligence

Negligence can take many forms, depending on the context:

  • Professional Negligence: Involves failure of a professional to perform their duties to the required standard of care, such as medical malpractice.
  • Gross Negligence: An extreme lack of care that shows a blatant disregard for the safety and well-being of others.
  • Contributory and Comparative Negligence: Situations where the plaintiff may have also contributed to their own harm.

What Is Gross Negligence, And How Does It Differ From Ordinary Negligence?

Gross negligence refers to a more severe form of carelessness that goes beyond mere negligence. It is characterised by a blatant disregard for the safety or lives of others, showing a significant deviation from the standard of care that a reasonable person would observe.

While ordinary negligence might involve a simple failure to exercise reasonable care, gross negligence implies a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.

Legally, this distinction often impacts the severity of penalties and the type of damages awarded.

Challenges in Proving Negligence

Proving negligence can be complex. It often requires thorough evidence gathering, including eyewitness testimony, expert opinions, and detailed documentation of injuries and losses.

The defendant may argue that they did not breach their duty of care, or that the breach did not cause the plaintiff’s harm.

In personal injury law, establishing negligence is crucial for a plaintiff’s claim for damages. The process involves not just proving each element but also quantifying the extent of the damages suffered.

Can A Minor Be Held Liable For Negligence?

A minor can be held liable for negligence, but the standards and consequences often differ from those for adults. In negligence cases, minors are generally judged against a standard of care expected of someone their age, experience, and intelligence, rather than the ‘reasonable person’ standard used for adults.

However, the extent of liability and the nature of the legal proceedings can vary based on the minor’s age, the severity of the negligence, and the jurisdiction’s specific laws regarding minors’ liability.

How Does Negligence Relate To Professional Malpractice?

Negligence in the context of professional malpractice occurs when a professional fails to perform their duties to the standard that is expected in their profession, resulting in harm or loss to a client or patient.

This type of negligence is specific to professionals like doctors, lawyers, accountants, and engineers, who have a higher duty of care due to their specialised skills and training.

Professional malpractice negligence claims must demonstrate that the professional breached their duty of care, directly causing the plaintiff’s harm.

The standard for judging such cases is typically based on the average competence level expected in that specific profession.


Negligence is a foundational concept in personal injury law and plays a significant role in shaping the legal landscape of liability and compensation.

It balances the need to hold individuals and entities accountable for careless actions with a recognition of the complexities of human behaviour and causation.

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