Liability in Negligence

Negligence is a key area of tort law, focusing on liability for personal injury and property damage. This section covers the essential elements required to establish negligence, the duty of care, breach of duty, causation, defences, and the role of compensation. Economic loss, psychiatric injury, liability for defective products, and special groups are excluded, in line with exam requirements.

Overview of Negligence in Tort Law

• Negligence involves a breach of a legal duty causing damage to another person or property.
• The claimant must prove the defendant owed a duty of care, breached that duty, and caused damage as a result.
• The burden of proof is on the claimant, who must establish their case on the balance of probabilities.

Duty of Care

Key Principles and Case Law

Donoghue v Stevenson (1932): Landmark case establishing the foundation of modern negligence. Lord Atkin’s ‘neighbour principle’ – “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

• The Neighbour Principle: A ‘neighbour’ is anyone so closely and directly affected by your act that you ought reasonably to have them in contemplation.

Caparo Industries plc v Dickman (1990): Introduced the three-stage Caparo test for duty of care:

• Was the damage reasonably foreseeable?
• Is there a sufficiently proximate relationship between claimant and defendant?
• Is it fair, just and reasonable to impose a duty?

Robinson v Chief Constable of West Yorkshire (2018): Clarified that the Caparo test is not a universal formula; established principles and precedent should be considered first. The courts will apply incremental development based on previous cases.

Recognising a Potential Action in Negligence

• Identify a relationship where one party owes a legal duty of care to another.
• Apply the Caparo test (unless precedent is clear).
• Check for proximity, foreseeability, and whether it is fair, just, and reasonable to impose a duty.

Breach of Duty

Objective Standard of Care

• Reasonable Man Standard: The defendant is judged against the standard of a ‘reasonable person’ (objective test), not their own subjective abilities.
• Special characteristics (e.g., professional skills) may raise the standard, but personal attributes (e.g., inexperience) do not lower it.

Risk Factors Affecting Standard

• Likelihood of Harm: Greater risk requires greater care.
• Seriousness of Potential Harm: If consequences are grave, more precautions are required.
• Cost and Practicality of Precautions: Reasonable steps must be taken, but not those disproportionate to the risk.
• Social Utility of Action: If the defendant’s actions have a beneficial purpose (e.g., rescue), the standard may be adjusted.

Damage

Factual and Legal Causation

• Factual Causation (‘But For’ Test): Would the damage have occurred ‘but for’ the defendant’s breach? If not, causation is established.
• Legal Causation (‘Remoteness of Damage’): The type of damage must be reasonably foreseeable (see The Wagon Mound (No. 1) (1961)).
• Intervening acts (‘novus actus interveniens’) may break the chain of causation, absolving the defendant of liability for subsequent harm.

Elements of a Negligence Action

Defences in Negligence

Contributory Negligence: Where the claimant’s own negligence contributed to their damage; damages may be reduced proportionally.

Volenti non fit injuria (‘consent’): If the claimant freely consented to the risk, the defendant may not be liable.

Illegality: No action in negligence if the claimant was engaging in unlawful activity when injured.

Burden and Standard of Proof

Burden of Proof: Lies on the claimant to prove the elements of negligence.

Standard of Proof: On the balance of probabilities (more likely than not).

Compensation: The Role of Damages

Purpose: To put the claimant in the position they would have been in had the tort not occurred.

Types:

• Special Damages: Quantifiable losses (e.g., medical expenses, repair costs).
• General Damages: Non-quantifiable losses (e.g., pain and suffering).

Damages may be reduced if contributory negligence is established.

Summary and Exam Tips

• Always structure answers using the four elements: duty, breach, causation, damage.
• Refer to key cases – Donoghue v Stevenson, Caparo, Robinson – when discussing duty of care.
• Discuss risk factors and the reasonable man standard for breach.
• Apply the ‘but for’ test and consider remoteness for causation.
• Identify and explain any relevant defences.
• Explain the burden and standard of proof for negligence claims.
• Describe the role and calculation of damages.
• Practice applying the law to problem scenarios for exam success.