What has to be proved in a negligence claim in Trinidad and Tobago?

A duty of care

Negligence in law means more than carelessness. The person who sues (the claimant) must first show that the person sued (the defendant) owed them a legal duty to take care. The foundation is the “neighbour” principle stated by Lord Atkin in Donoghue v Stevenson: a person must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure people so closely and directly affected that they ought to have them in mind.

In most everyday cases the duty is well settled. Drivers owe a duty to other road users, employers to their workers, occupiers to lawful visitors, and doctors to their patients. In a new type of situation, the court develops the law step by step from the closest existing cases (Robinson v Chief Constable of West Yorkshire Police [27], a UK Supreme Court decision that is persuasive, not binding, in Trinidad and Tobago).

Breach: the standard of reasonable care

The defendant breaches the duty by failing to do what a reasonable person would do in the circumstances, or by doing what a prudent and reasonable person would not do (Blyth v Birmingham Waterworks Co). The standard is objective. The court asks what a reasonable person in the defendant’s position would have done, taking into account how likely harm was, how serious it could be, and what precautions were practicable.

The burden of proving negligence is on the claimant throughout the case. Where the cause of an accident is not known, the facts may themselves support an inference of negligence: for example, where the thing that caused the harm was under the defendant’s control and the accident is of a kind that does not ordinarily happen without negligence. The defendant must then answer that inference with evidence, but the legal burden of proof stays with the claimant (Ng Chun Pui v Lee Chuen Tat, a Privy Council decision on an appeal from Hong Kong).

Causation, remoteness and damage

The claimant must prove actual damage, such as personal injury or damage to property. The law is more restrictive where the only loss is financial, or is psychiatric injury not caused by any physical injury.

The breach must have caused the damage. The usual question is whether the damage would have happened “but for” the defendant’s breach. If it would have happened anyway, the defendant is not liable for it (Barnett v Chelsea and Kensington Hospital Management Committee).

The damage must also not be too remote. Under The Wagon Mound (No 1), a Privy Council decision on an appeal from Australia, a defendant is liable only for damage of a kind that a reasonable person would have foreseen.

When the injured person was also careless

Where a person suffers damage partly through their own fault and partly through someone else’s fault, the claim is not defeated. Instead, the damages “shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage” (Supreme Court of Judicature Act (Chapter 4:01), s 28(1)). The court must find and record the total damages that would have been recoverable if the claimant had not been at fault (s 28(2)). “Fault” includes negligence (s 32). The question is whether the claimant failed to take reasonable care for their own safety and so contributed to their own damage, not only to the accident.

Can a notice or contract term exclude liability?

Where the liability arises in the course of a business, or from the occupation of premises used for business purposes, a person cannot by a contract term or a notice exclude or restrict liability for death or personal injury resulting from negligence, subject to exceptions for some kinds of contract (Unfair Contract Terms Act (Chapter 82:37), ss 4(3), 5(1), First Schedule). See the page on exclusion clauses and notices.

Can I sue the government for negligence?

The State is liable in tort, as if it were a private person of full age and capacity, for torts committed by its servants or agents, for breach of an employer’s common law duties to its own servants or agents, and for breach of the common law duties attached to the ownership, occupation, possession or control of property (State Liability and Proceedings Act (Chapter 8:02), s 4(1)). For a tort committed by a servant or agent, the State is liable only where that servant or agent would personally have been liable (s 4(2)).

A statutory corporation is not an agent of the State unless the State has made an express contract of agency with it, and its employees are not servants of the State (s 2(2)), so a claim arising from their acts is normally brought against the corporation itself. A claim against the State is brought against the Attorney General (s 19(2)), and the contributory negligence rules in section 28 bind the State (s 7(3)). The Limitation of Certain Actions Act applies to claims against the State as it does to claims between private persons (s 18(1)); the time limits are explained on the page on personal injury time limits.