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Negligence: A practical Approach Essay

Negligence by definition is failure to achieve the standards expected of an ordinary person. The word ordinary is understood from the perspective of a normal right thinking member of the society. Negligence must never be confused for recklessness or carelessness. This is because a person may be careful in his/her actions and yet ends up being negligent. The test for negligence is objective and not subjective. This discussion focuses on negligence as a legal concept, how to bring a successful case under negligence and the available defenses for negligence (Martin A. 1912).

Focusing at the case in question it is evident that there was massive negligence especially on the part of the owner of the gymnasium, Beefy Bert. However in order to succeed in negligence claims there are some elements that a plaintiff must prove to the court. Firstly it is important for the plaintiff to prove that the defendant owed him a duty of care. Secondly the plaintiff must further prove to the court that the duty owed to him by the defendant was breached. Other elements that the plaintiff needs to prove include the actual cause, the proximate cause and the damages (Thomas W. 1971).

Duty of care is the

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first element in a claim of negligence that needs to be proved. There must be proof that there did exist a duty of care to the plaintiff which the defendant has been violated. A landmark case on this particular element is Donoghue vs. Stevenson. Donoghue the plaintiff drank a beer that had been manufactured by Stevenson. In the drink, there was a decomposed snail.

The plaintiff sued Stevenson. It was held that although there did not exist any contractual relationship between the parties the manufacturer (Stevenson) owed all consumers a duty of care by ensuring that the drinks manufactured were for human consumptions. Looking at the case in question the owner of the gymnasium, Beefy Bert, owed all customers a duty of care by ensuring that all equipments were well fixed and were in good working conditions. In this case, Beefy Bert owed Gillian and Niall a duty of care as they were his customers.

The second element in a claim for negligence is breach of the duty of care. The plaintiff is required to show the court that the duty owed to him by the plaintiff has been breached. Usually the court uses both the objective and the subjective court. Whether the breach of duty took place intentionally or unintentionally the defendant will be held liable (Martin A. 1912). Any person who engaged in activity that poses risk to the people around him will be liable for breach of duty of care.

However, as decided by the House of breach of duty Lords will only suffice if the harm was foreseeable. In Ball vs. Stone it was held that a cricket ball which hit the plaintiff could not be foreseen to go to such a distance as to pose danger and thus the plaintiff was not compensated. Looking at the case of study the owner of the gymnasium having a duty of care to his customers breached that duty by failing to properly fix the equipment.

In claims of negligence there is need for the plaintiff to prove that a particular act or omission by the defendant is the cause of the breach of duty of care owed to him. This is referred to as factual causation. The plaintiff must prove that the loss or damage suffered by him is as a direct result of an act or omission by the defendant. The test that the court normally uses is to ask whether the act or omission would have occurred if it were not for the breach of duty of care. Looking at the case in question it is evident that the injuries that occurred to Gillian and Niall would not have occurred if it were not for the failure of the owner of the gym to fix the equipment properly (Clarke, A. 2003).

Legal causation is yet another vital element in negligence that needs to be proven. This basically refers to the predictability of the occurrence of a particular act. It is argued that if the consequences of a particular action or omission are not foreseeable as being potentially risky to other people then the defendant cannot be held liable for such actions or omissions.  In Palsgraf vs. Long Island Rail Road Co., the plaintiff was hit by scales which fell on her while waiting for a train. The scales were as a result of a commotion from far away. It was held that the defendant did not owe a duty of care to the plaintiff since she was not foreseeable (Martin, 1912).

Damage is an element that is obvious in a claim of negligence. (Clarke, 2003) The burden of proof lies with the plaintiff to prove that as a result of the breach of duty of care by the defendant he suffered a certain loss or damage. If no damage, loss or injury is suffered even if there was breach of duty of care the defendant will not be held liable. In claims of negligence the plaintiff needs to show that he suffered pecuniary loss. Prove of other losses like emotional distress have since been recognised and with substantial proof the plaintiff will be warded damages by the court. Emotional distress however must be accompanied either by monetary loss or physical injury for it to be accepted by the court.

In this particular case it is evident that Gillian and Niall suffered as result of the failure of the owner of the gym to have the equipment properly. In addition, both victims suffered not only physical injuries but also emotional distress and pecuniary losses. Gillian received a dislocated shoulder and deep scrapes to her back and shoulder. She has been told that she will be off work for a minimum of six weeks. For the six weeks or more that she will be away from work she will lose a substantial amount of money.

Niall on the other hand has received burns to the scalp, neck and torso from the scalding water in the badly plumbed showers. The doctors have treated Niall’s burns but they are not healing well.  It appears that Niall had a pre-disposition to a rare skin disease and it seems likely that the wounds will never heal properly. It is clear that the two have suffered loss pecuniary, physical and emotional (Beers E. 1904).

The exclusion clause put at the reception of the gym does not have any effect and the owner of the gym will still be held liable. This is so because the clause defeats the very purpose for which was drafted. In addition, a clause cannot be valid if it is illegal or goes against the established laws. There are some important obligations that a trader or a business owner owes to his customers which cannot be overlooked. For example, a businessman has a duty to ensure that all goods or services provided to his customers are satisfactory and fit for human consumption.

The Consumer Transactions Act of 1972 limits all businessmen and traders from excluding their liability on any defective services and goods. According to this Act all services offered to consumers must be rendered with due diligence, skill and care. This is an obligation that is implied on the trader by the Act and cannot thus be excluded (Beers, 1904).

In this case the owner of the gym had an obligation to ensure that all services provided to his customers were provided with care and skill. There is evidences that care and skill was not exercised in this case as the owner of the gym asked one of his friends Mario, who was drunk to fix the showers. However he forgot to a thermostat to regulate the water temperature.

In this case therefore it is clear that Bet is liable for negligence. Further Bert cannot rely on then exclusion clause as it goes against the law and the Consumer Transactions Act. The two complainants therefore have will succeed in their case of negligence as they have suffered monetary, physical and emotional distress. They will be awarded damages by the court depending on the extent of the damage suffered by each.


Beers, E. (1904). Negligence. New York: Banks & Company.

Callaghan & Company. (1921). Negligence Compensation Cases Annotated. London:


Clarke, A. (2003). Negligence: A practical Approach, New York: Lexis Nexis

            Butter worths.

Martin, A. (1912). Negligence, Washington: American School of Correspondence.

Thomas, W. (1971). Law of Negligence, London: Oxford University.

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