In making a claim, a person injured in an accident often alleges that the defendant was negligent in some respect, and that such negligence led to the accident and injury.
Courts may, from time to time, have put forward slightly varying versions of the legal definition of negligence but the basic idea is that a person is negligent if he fails to do something a reasonable person would have done, or if he does something that a reasonable and prudent person would not have done.
In real life situations, the law applies the concept of negligence together with the related concept of duty of care to resolve questions about who takes legal responsibility for an accident and injury. One way to illustrate this is with a story:
Mr Jones is the owner and manager of a clothing shop. He’s been in business for 20 years, and has spacious premises with a team of experienced and friendly sales assistants in the heart of the city’s shopping district. He is proud of the shop’s distinctive architectural features, and particularly the polished terrazzo stone floors that underscore the stylishness of the merchandise and the way it is displayed.
Every evening for 20 years, Mr Jones has had his cleaning crew carefully dust and wet-mop the shop’s terrazzo floors just after closing time. Before doing so, they put up yellow “wet floor” warning signs at each of the entrances to the sales floor (being the main entrance from the street and two entrances from the stock room in the back of the shop). Mr Jones also makes certain the front door is locked from the outside (although open from the inside) so that no one could come in off the street and slip on the wet floor. In 20 years, few people had ever been permitted to walk on the wet floor, and certainly no one had ever slipped or fallen on it.
One evening, several sales assistants stayed after closing time in order to help Mr Jones with stock-taking. One of those sales assistants was Henry, who had joined as an employee during the past few months and who had been proving to be an excellent worker despite his slight hearing impairment.
On that evening, the cleaning crew mopped the sales floor area as usual, while Mr Jones and the others did their stock count in the back room. When they began the stock count, Mr Jones instructed the sales assistants that when they finished they should leave the premises through the rear exit since the janitors were cleaning the sales floor.
The stock-take went quickly. When it finished, Mr Jones thanked his employees, and then went to work in his small office while they left the building. Henry, the newest employee, decided to go out through the shop’s front entrance, since his brother was going to meet him on the pavement just outside. As Henry headed out of the stockroom onto the sales floor, he slipped on the freshly-mopped terrazzo floor, fell onto his side, and shattered his right elbow.
Two days later, Henry went to a local solicitor to find out whether he could make a claim for his accident and injury.
His solicitor explained the concept of negligence to him and went on to explain that it is helpful to think of a negligence claim as having three parts:
- The basic question whether a person has been negligent;
- The question whether the person who had been negligent had a duty of care to the claimant;
- The question whether the person’s negligence was a cause (not necessarily the only cause, but a cause) of the claimant’s injury.
So where do things stand for Henry?
Question of negligence
One might well conclude that Mr Jones had been negligent. Although his decision to have the shop floor wet-mopped each day may have been that of a reasonable man, he may nevertheless be negligent in having failed to do certain things that a reasonable and prudent man would have done.
For instance, a reasonable and prudent man might have secured the doors between the stock room and the sales floor while the janitors were mopping the sales floor. He also could have given the employees a further reminder to go out the back door before they left, ensured that Henry (who is hearing-impaired) heard and understood the instruction, and even watched the sales assistants leave the premises before going into his office.
Certainly, Mr Jones took some precautions — and had a 20 year track record of no slips and falls on the freshly mopped floor — but did he go far enough? To have a claim, Henry needs to establish that he did not.
Duty of care
The concept of duty of care has evolved considerably in recent decades, and the law now recognises duty of care as having three components:
(a.) The harm to be protected against must be foreseeable;
(b) The claimant and defendant need to be in proximity to one another, either physically, by way of some legal relationship, or by some other means; and
(c.) It must be fair, just and reasonable for the defendant to have a duty of care to the claimant.
Henry would argue that the harm was certainly foreseeable. When a smooth, stone floor gets wet, it gets slippery and people can easily fall onto the hard surface and get hurt. Jones, on the other hand, might accept that a slip and fall on a wet stone floor is foreseeable, but say that it is not foreseeable that a responsible employee would venture onto the wet floor despite the “wet floor” signs and an express instruction from his employer to use the rear exit.
And Henry would have no difficulty establishing proximity with Jones, since the parties share a legal employment relationship and Henry was injured inside Jones’s shop.
Finally, is it fair, just and reasonable that Jones owe a duty of care to Henry? Again, the fact that Henry is Jones’s employee is probably conclusive on this point. It would be difficult for Jones to argue that it would somehow be unfair, unjust or unreasonable for him to owe a duty of care to an employee who is working for him (or leaving the building after completing his work).
Assuming Jones was negligent — either in allowing the sales floor to be wet while the sales assistants were on the premises or by failing to take adequate measures to prevent Henry from walking onto the wet floor — was his negligence a cause of Henry’s accident and injury?
It seems fairly clear that it was. Polished stone floors are slippery when they’re wet, and it’s unlikely that Henry would have slipped and fallen if the floor had been dry or if he had gone out the rear exit with the rest of the employees.
Of course, Jones may argue that Henry walked right past a “wet floor” warning sign when he walked onto the sales floor, and ignored Jones’s express instruction to leave the building through the rear exit. This, Jones might also say, means Henry was contributively negligent, since a reasonable person would have taken heed of the warning and not risked injury by going onto the wet floor.
Jones’s claim that Henry was contributively negligent has some merit, but it is weakened somewhat by his knowledge that Henry has a hearing impairment — it is a principle of negligence law that the defendant must take the claimant as he finds him, so Jones bore the risk that Henry did not hear his instruction to leave via the rear door.
Even though Henry’s case against Jones seems fairly good, Jones (or his insurer) still has several arguments to make, which could have a major impact on the court’s decision. In cases like this, having an experienced solicitor who specialises in personal injury cases can make the world of difference.
And, depending on your situation, you may be able to find a solicitor who will agree to take your case on a “no win no fee” basis, which means you don’t have to pay for the solicitor’s services unless you win your case.
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