The essay examines the concept of negligence and its application to a real-life situation. Thus, the paper applies the concept of negligence to a study where Ella suffered the loss of a $40 million dollars deal because she missed her flight due to the maintenance issues implemented by the airline. The other case study shows how David suffered a physical injury because he tripped on the washing equipment that Emily put on the footpath.
The objective of this essay is to establish whether Ella or David can secure monetary rewards for the injuries they have secured due to negligence.
To establish their cases, this paper examines the concept of negligence and the elements of negligence, which are the duty of care, damages, and breach of duty.
Several definitions have been provided to the concept of negligence. The general definition of negligence is the failure of a person to act with reasonable skills and care to prevent damages. Under tort law, the concept of negligence can be looked at in different dimensions. Simons (2002) defines the concept of negligence as creating an unreasonable risk to another person, where this risk could be prevented by taking necessary precautions. However, looking at the definition provided by the author, it is revealed that a person can be accused of being negligent in his duty if actually he or she intentionally causes the act of negligence when the damages inflicted on a subject could be prevented.
However, there are cases of gross negligence when there is a reckless demonstration of substantial lack of concern on whether there can be an injury on the subject or not. (Larson, 2003).
The definition of negligence provided by Mahoney (1990) is elaborate enough. According to the author, negligence is done when a person departs from a standard or expected skills required of a competent or qualified professional. In law, negligence is caused unless there is damage to a person. Thus, a person does not accuse of being negligent unless damage is done.
In the US common law, negligence is defined as the behaviors that no careful person would have committed. For example, a surgeon leaving surgical equipment in the body of a client is a classical example of negligence per se. (Harris, Richards, Fincham, 2006).
However, negligence has three elements. The paper discusses the elements of negligence in the next section.
Element of negligence
The elements of negligence are classified into three. Owen (2007) classifies elements of negligence as duty, breach, damage, and cause.
However, this paper classifies elements of negligence as the duty of care, breach of duty, and damage.
Duty of care
Duty of care applies to a standard of care that a professional should implement when he is within the scope of his employment. Typically, the duty of care refers to policies, procedures, and protocols that apply to a person when he or she is within his occupation. (Ashley, 2004). Essentially, the duty of care requires a person on duty to exercise reasonable standards while performing professional duties. It should be noted that any negligence in the duty that causes damages on a client, which approach strict liability may be termed as negligence in the duty. (California State University).
Under the law, it is the duty of an organization to take reasonable measures to protect its clients from unforeseen damages. Although, the law recognizes that a person under his duty must exercise reasonable care, however, the law exercises certain caution before a person can be deemed to commit negligence in the duty. Leonard (2007) argued that a plaintiff needs to prove beyond reasonable doubt that a defendant commits successful negligence, and breach a duty that causes unreasonable harm to another party.
Thus, an essential element of proving negligence in the court of law is for a plaintiff to establish reasonable foreseeability.
Proving negligence in the duty of care should include reasonable foreseeability, where a plaintiff can prove to the court that a defendant can reasonably foresee that negligence in the care of duty can actually lead to injury. It should be noted that most courts easily arrive at decisions with the concept of reasonable foreseeability because it helps the court to make an objective judgment if reasonable foreseeability can be established. (Oxford University Press, 2009).
Essentially, to prove reasonable foreseeability, a plaintiff should prove that defendants could reasonably foresee or predict that their actions may make a plaintiff suffer economic loss or harm. For example, the case of Hay (or Bourhill v Young  AC 92. (Harvey, 2007).
In addition, vulnerability must also be established between defendants and the plaintiff.
Vulnerability entails whether there is a position of reliance exist between the defendants and the plaintiff. Thus, to prove vulnerability, it should be established that the plaintiff is in the position of vulnerable and powerless, and the defendant is in the position of power with his acquisition of knowledge, resources, and rights.
Application of negligence to the case studies
Applying to case study 2,
Ella has already booked a ticket with an airline, and essentially she was supposed to arrive in Sydney on Friday to honor her meeting with her client on the $40 million business deal. However, she was unable to secure her business deal due to maintenance issues being carried out by the airline. (Leonard, 2007). Essentially, Ella has already put all her mind into that she will travel with this airline at that stipulated scheduled time to secure a business deal. By missing the flight, Ella can successfully sue the airline for the negligence of duty of care. Under the law, the negligent misstatement has caused Ella economic loss. Meanwhile, Ella can successfully prove that the airline has caused her economic loss because she has relied upon the statement made by the defendant, and by reasonably relying on the statement; it has caused her economic loss. (Harvey, 2007).
Meanwhile, Ella can recover her economic loss if she can prove that the maintenance being carried out by the airline actually caused her some economic loss. As being argued, “a successful negligence action requires a plaintiff to prove that the defendant owed a duty of care and then breached that duty by creating an unreasonable risk of harm”. (Mallor, 2001, p. 277). Actually, Ella had already reserved a seat with the airline, and it is the duty of the airline to contact Ella that they would implement maintenance issues on the aircraft and there would be a delay on the flight, which may cause Ella not to travel at the time schedule. Because the airline has failed to contact Ella about the maintenance issues, they can be sued for economic loss. Thus, the airline failed to act on its duty of care to warn Ella. For example, Mallor pointed out that
“the case of Coombes v. Florio, the Massachusetts Supreme Judicial Court (SJC) examined whether a physician’s duty of care extends to third parties harmed by the physician’s failure to warn a patient of a prescribed medication’s side effects. The the court concluded that a physician owes a duty of reasonable care to any individual foreseeable put at risk by the physician’s failure to warn his or her patients.” (200, p. 277).
However, under case study 1, David cannot successfully sue Emily or Wipe away Pty Ltd to recover medical expenses and loss of earnings that he had suffered. Essentially, Emily or Wipeaway Pty Ltd does not have any obligation to David, and the accident inflicted on David was not foreseeable harm. Thus, David cannot establish that there is reasonable foreseeability to prevent the injury that he has suffered. In addition, it will be problematic for the plaintiff to enforce the duty of care on defendants in order to claim damages. For example, “a plaintiff in a negligence case must prove not only that the defendant breached a duty owed to the plaintiff, but also that the plaintiff suffered actual injury”. (California State University, p 4).
Although David might have suffered an injury, however, by reviewing this statement, David cannot prove any duty of care that Wipeaway Pty Ltd owed to him. Thus, David will find it difficult to prove his case to court in order to recover medical expenses and loss of earnings for the damages he has secured.
Damages are the money that a plaintiff can be allowed to claim if a plaintiff can prove to the court that the defendant has actually caused the subject personal injury due to his act of negligence. Essentially, a plaintiff can secure damages in monetary terms for the harm he has secured due to negligence of duty of care. (Fershtman, nd).
Relating this to case study 1 where David intends to claim damages because he suffered an injury because he stepped on the cleaning equipment that Emily put on the footpath. David cannot claim damages in this issue because the defendant cannot be found to be negligent in her duty. Moreover, it was not reasonably foreseeable that David will step on the cleaning machine. From the Oxford University Press handbook, the case of
“Crossley v Rawlinson,  3 All ER 674, it was found that an injury to a would-be the rescuer was not foreseeable because the injury was suffered on the way to the dangerous state of affairs. In the court’s opinion, the claimant’s injury had come about in an unforeseeable way”. (2009, p 73).
Thus, it should be realized that David needs to establish foreseeability of consequence in the court of law before he can actually secure damages from the defendants. (Oxford University Press, 2009).
Since the accident is not foreseeable, David will find it very difficult to convince the jury that Emily or Wipeaway Pty Ltd actually caused him an injury due to negligence in the duty of care.
However, in case 2, Ella can secure damages because the delay of the aircraft is foreseeable, thus, Ella can claim economic loss from the airline. It should be noted that Ella could establish the case that there is reasonable foreseeability to prevent Ella from missing the scheduled flight and the airline has actually breached their duty to cause an economic loss on Ella. (Oxford University Press, 2009).
Breach of Duty
Breach of duty is simply not to abid to a reasonable standard of conduct, which can cause harm or injury to another person. Typically, breach of duty can also be defined as a violation of moral or legal obligation in one’s duty. Essentially, duty must be established before constituting a breach of duty. Thus, standard care could be established once the duty has been established. (Larson, 2003).
Thus, negligence can be proved by a breach of duty. However, to prove that the defendant has actually breached his duty of care. Certain elements must be established. The plaintiff must establish that the defendant owes a standard of care to him. Moreover, the plaintiff must establish the level of standard of care that the defendants owe to him. Thus, to establish the breach of duty, the defendant must be able to prove that plaintiff is reasonable enough to foresee that the injury can be caused by a breach of duty.
With the application of a breach of duty to case study 1, where David suffered a physical injury because he tripped on the cleaning equipment left on the footpath. Actually, David cannot recover medical expenses or loss of earning if he sues Wipeaway Pty Ltd or Emily because duty is not established between the two parties. Thus, David cannot prove that Wipeaway Pty Ltd breach a duty that has been established. Moreover, David will not be able to establish that Emily is reasonable enough to foresee the physical injury caused by slipping on the cleaning equipment. Thus, David will not be able to establish his case or win this case in the law court.
However, applying the breach of duty to case 2, where Ella missed the flight due to negligence of the airline, which has caused her an economic loss. Ella can reasonably established the case that the duty has been established between her and the airline. Thus, by missing the flight, the airline has actually breached the standard of duty. In addition, Ella can establish that Airline is reasonable enough to foresee the injury caused to her. Thus, the airline did not take any precautions to prevent the injury. Meanwhile, the airline has actually breached the standard of duty. In the case of Ella, she can recover her loss from the airline if she sues for damages.
This paper analyses two case studies where negligence has been established. The paper shows that in case study 1, David cannot recover medical expenses nor recover loss of earnings due to the injury he has suffered because it will be difficult to establish that Emily has actually foreseen the injury. In addition, there is no duty established between David and Wipeaway Pty Ltd. However, in Case study 2, Ella can recover losses because she has established duty with the airline, and the airline is reasonable enough to foresee the injury. Thus, the airline has actually negligently breached the standard of duty, which has led Ella to suffer economic loss.
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