What to note when making a negligence claim? What damages can be claimed?
A negligence claim is the most commonly raised claim in tort law; the plaintiff may claim compensation based on his physical, psychiatric and economic loss. The burden of proof lies on the plaintiff in proving a duty of care, the defendant’s breach of duty, causation to the accident, and a reasonably foreseeable kind of loss. Apart from this general principle that the plaintiff bears the burden of proof, there are several things the plaintiff should make a note of:
- If the plaintiff is unable to prove the defendant’s breach of duty due to the nature of the accident, such as object falling, he may rely on res ipsa loquitur by showing that the accident occurred in an unknown cause, the accident would not have happened in the ordinary course of events without defendant’s negligence, and the activity was in the defendant’s control. If the claim based on res ipsa loquitur succeeds, the defendant has to provide evidence contrary to defend himself.
- According to Baker v Market Harborough  1 WLR 1472, if the plaintiff cannot provide any evidence about the accident, he will share the liability with the defendant on a 50/50 basis.
- According to section 62 of the Evidence Ordinance, if the defendant is convicted of a criminal offense like dangerous driving before, a claim against him arising from the same fact would presumably be established in the absence of further evidence provided by the plaintiff, unless the defendant can provide contrary evidence.
The principle of damages for a negligence claim is to restore the plaintiff to the position he was in had the tort not occurred, and damages have to be reasonably foreseeable. There are three categories where damages may arise: physical, psychiatric and economic loss. Physical loss includes personal loss and loss of belongings, and compensation for medical expenses and recovery is usually granted.
Psychiatric loss is categorized in two ways: first, the plaintiff suffered psychiatrically as the primary victim, for instance, suffering from PTSD in a car accident; or the plaintiff is the secondary victim where he suffered psychiatrically in witnessing kin’s physical damages. For example, the plaintiff may suffer from anxiety after witnessing his family members injured in a car accident. However, the psychiatric disease must be medically recognized with valid medical proof.
Economic loss is also divided into two types: the first one is economic loss consequential on the physical loss, such as the plaintiff’s loss of earning power due to the accident; the second one is a purely economic loss where the loss is independent of the physical loss. A typical scenario is a loss emanated from the purchase of financial products recommended by a financial manager. Such a claim requires proof of a fiduciary relationship, yielding a lower possibility for a successful claim.