One of the main principles of law is the law of negligence. The main purpose of the law is to maintain and enforce expected standards of care in relationships between people. It is a fluid and dynamic law because it is always responding to current situations. What may not have been a case of negligence 30 years ago may be a case of negligence today. For example, the failure of a physician to warn a patient of the risk of HIV infection in 1980, when performing artificial insemination, may not have been a case of negligence then because the risk was not known at the time but would be a case of negligence today because the risk is now well known.
To establish a case of negligence, the plaintiff must prove the following: (1) a duty of care has arisen between the plaintiff and defendant, (2) the defendant breached the standard of care which was required to meet that duty, and (3) the plaintiff suffered damages (losses) resulting from the breach. Negligence may occur when providing information or advice. An example is an accountant failing to give proper tax advice. Negligence may also occur when performing an act. An example is an insurance agent who fails to provide the proper insurance coverage for a building contractor.
If the negligent act results in physical injury to the person, the negligent defendant “takes the victim” as found. This is the “thin skull” rule. The defendant is liable for all physical injury to the victim even though the victim had a pre-existing physical condition, such as a thin skull, which made the injury more serious than for an average person.
There are two main defences to a case of negligence. If the plaintiff voluntarily assumes the risk, the defendant cannot be liable for the damages suffered. If the plaintiff contributes to the damages by negligent conduct, the defendant is liable but the plaintiff’s damages are reduced. The damages suffered by a plaintiff who trips over a sandwich board sign, which is there to be seen, may be reduced by 50 per cent or more.