top of page
Textured Wall

Negligence

The civil tort of negligence is codified in Article 51 of the Civil Wrongs Act, Cap. 148, and consists of the injurious breach of the duty of care. The duty of care is defined in terms of the care that the average prudent person would exercise to avoid causing harm to his neighbor under the given circumstances.

In other words, it requires the establishment of a duty of care, its breach by an act or omission which, in the particular circumstances of each case, the average reasonable and prudent person would not have committed and the causing of damage as a result of that act or omission.

Also, for damage resulting from a negligent act or omission to be recoverable, there must be a causal link between the two. Where a causal link exists, the damage is normally recoverable, provided that it is not, on the one hand, too remote from the negligent act and, on the other hand, an unforeseeable consequence of the negligence shown.

Road Accidents/Road Negligence

Every driver, as a road user, has a duty of care to ensure that his or her actions or omissions do not cause damage to other road users.

This duty is impersonal and is objectively determined and owed to any third party who, by a reasonable foresight, may be affected by his acts/omissions. It has to do with the ability to foresee the risk.

When the possibility of a road hazard is reasonably apparent, then failure to take a precautionary measure constitutes negligence.

The parameters of the objective criterion of negligence are determined by the behaviour of a prudent and prudent driver, not a perfect driver.

A driver has a duty to observe due care at all times and in all circumstances. Negligence is interwoven with time, place and other circumstances and failure to see what is merely visible is negligence.

2

Occupier's Liability

The occupier of immovable property is recognised as having a duty of care for the reason that he has control and direct supervision over it. He further has the power to permit or prohibit entry to it. Liability is based on possession and control.

 

The law recognizes a different responsibility to the occupier of real property in relation to 2 categories of persons who enter and are on the property with his permission:

  • Invitees

  • The bare licensees

The occupier has two duties:

  • For the static condition of the property; and

  • For the operation of his activity or business.

Visitors/Invitees

A person who is present in the premises at the invitation of the occupier, from whom the occupier has a common pecuniary or material interest with the invitee. An invitation is a request to enter the premises to carry out the purposes of the holder's business. An invitation may be written, oral, implied or by conduct.

As far as the static condition of the premises is concerned, the occupier has a duty to prevent the damage that an unusual danger which he knew or ought to have known might cause. He has a duty to know that which a reasonable person would know or be presumed to know.

 

As regards the occupier's activities within the premises, the occupier has a duty to take reasonable steps to prevent harm to anyone lawfully there, whether invited or licensed, even if the likelihood of the danger occurring was slight (slight) does not relieve the occupier of the premises from taking protective measures so long as the danger is foreseeable and the occupier knew of it.

Bare Licensees

As far as the static condition of the premises is concerned the duty is limited in relation to a mere licensee, since the occupier has a duty to warn of any hidden or latent danger of which he knows, or is presumed to be aware.

Trespassers

It is the person who enters the immovable property without prior invitation or permission, and against the will of the occupier. It is recognized in case law that an occupier is liable to persons who trespass on land in his possession, including animals. This is because common humanism and solidarity towards the neighbour impose a duty on the occupier to take protective measures against any damage that may be caused to persons who may reasonably be expected to trespass on his land.

 

Fulfilling the duty to third parties depends on the knowledge and means available to the holder to prevent such damage. 

 

The duty to take measures to protect a trespasser arises whenever the likelihood of interference with the land is substantial. 

The duty is increased in proportion to the risk of damage to persons likely to enter the land. The greater the risk, the greater the duty to take protective measures.

 

The determination of the duty is not independent of the reasons for the intervention. The duty towards persons who intervene in order to commit a crime is one thing, and the duty towards children who enter the land of the occupier in order to play is another.

3

Employer's Liability

The employer has a duty to those he employs to take such reasonable measures and care for their safety as the circumstances of each case require. The duty of the employer is greater than that of the occupier of immovable property and his invitee. The employer has a duty to have regard to the reasonable safety of the persons he employs and the need to avoid foreseeable risks.
Another part of the broader duty that the employer has is to implement a safe system of work. A system of work is not safe if it does not adequately protect the persons employed from a particular risk which can reasonably be foreseen and which can be prevented by protective measures whose solution is both practicable and the expense involved is not wholly disproportionate to the nature and magnitude of the risk they seek to avoid.
Part of the employer's general duty is also his obligation to provide and maintain a safe workplace; it is not sufficient merely to give warnings so that the workplace is as safe as common sense and reasonable care require.

The reasonable care to be taken by the employer in each case is a question of fact and not of law; and the Court may take into account any evidence which it considers on the basis of common sense to be consistent with the particular circumstances of each case.
Certainly if a risk is regarded as an ordinary risk of a particular profession, which it was not reasonable for the employer to reduce or eliminate, the employer will not be liable.

4

Medical Negligence

A doctor cannot always be expected to be successful in the medical work he undertakes. His duty, like that of all other professionals, is to exercise reasonable care and attention.

A doctor is not guilty of negligence if he acts in accordance with a policy that is accepted as correct by a responsible body of qualified medical practitioners regardless of whether another qualified body holds a different view.

A doctor who believes that the chances of risk in a particular treatment are zero has no obligation to disclose them to the patient.

In order for a patient to succeed on a claim as to why he was not given a warning of the possible consequences that may arise he must show that even if he had been given the warning he would not have consented to the particular treatment.

But the question of whether or not a doctor has acted negligently is decided by the Court and not on the basis of the practice adopted by a qualified medical practitioners.

A patient seeking damages for medical negligence must prove:

(i) The existence of a duty of care to the patient. To this end, the patient will have to prove the existence of a doctor-patient relationship. A doctor has a legal duty to care for a patient in the hospital or clinic where he or she works, but has no legal duty to act as a saviour for a stranger who loses consciousness at a party or is injured in a car accident. Legal obligation as opposed to moral obligation is noted here.

(ii) Negligent act or omission on the part of the doctor. The patient must prove that the doctor has breached his duty of care by presenting evidence that the doctor's actions were less than what is considered satisfactory by the courts.

(iii) Causing harm. The patient must prove that because of the doctor's actions his or her health has deteriorated or that he or she has suffered some other specific harm.

Textured Wall

Contact us

Τel: 22877400

Fax: 22877403

Address

Working hours

08:00 - 18:30, Mon - Fri

  • Facebook
  • LinkedIn

@Giorgos K. Kazantzis LLC 2023

bottom of page