For Graduate Diploma in Law (GDL) students, tort law, and specifically the tort of negligence, is a foundational subject. It's a civil wrong that provides a remedy for individuals who have suffered harm due to the unreasonable conduct of others. This guide simplifies the core components of negligence, breaking down the essential elements—duty of care, breach, causation, and remoteness—with clear explanations and key case law, tailored for non-law graduates.
💡 Key Takeaway
Negligence requires a claimant to prove, on the balance of probabilities, that the defendant owed them a duty of care, breached that duty by falling below the required standard of care, and that this breach caused the claimant's loss, which was not too remote. Understanding the landmark case of Donoghue v Stevenson [1932] AC 562 is the essential first step.
The Duty of Care: The Neighbour Principle
The modern law of negligence begins with the 'neighbour principle' established in the landmark case of Donoghue v Stevenson [1932] AC 562. A manufacturer of ginger beer was held liable to the ultimate consumer who became ill after finding a decomposed snail in the bottle. Lord Atkin stated:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
The Caparo Test for Novel Situations
For situations where a duty of care has not already been established by precedent, the courts apply the three-stage test from Caparo Industries plc v Dickman [1990] 2 AC 605:
- Reasonable Foreseeability of Harm: Was it reasonably foreseeable that the defendant's actions could cause harm to the claimant? (Kent v Griffiths [2001] QB 36)
- Proximity of Relationship: Is there a sufficiently close relationship between the claimant and defendant? This can be physical, circumstantial or causal. (Bourhill v Young [1943] AC 92)
- Fair, Just, and Reasonable: Is it fair, just, and reasonable to impose a duty of care? This involves public policy considerations. (Hill v Chief Constable of West Yorkshire [1989] AC 53)
Breach of Duty: The Reasonable Person Standard
Once a duty of care is established, the claimant must show that the defendant breached that duty. The standard of care is that of the 'reasonable person'. This is an objective test, as established in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.
The Objective Standard
The court will not consider the defendant's own abilities or characteristics. For example:
- A learner driver is judged by the standard of a reasonably competent driver (Nettleship v Weston [1971] 2 QB 691).
- A junior doctor is judged by the standard of a reasonably competent doctor in that field (Wilsher v Essex Area Health Authority [1988] AC 1074).
Factors in Determining Breach
The court will consider several factors to determine if the defendant has fallen below the standard of care:
- Probability of Harm: The more likely the harm, the more care is expected. (Bolton v Stone [1947] AC 850)
- Severity of Potential Harm: If the potential harm is serious, greater care is required. (Paris v Stepney Borough Council [1951] AC 367)
- Cost of Precautions: The court will balance the risk against the cost and practicality of taking precautions. (Latimer v AEC Ltd [1953] AC 643)
- Social Value of the Activity: If the defendant's activity has a high social value, the court may be less likely to find a breach. This is now supported by the Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015 (SARAH Act).
📝 Exam Tip
When analysing breach, don't just state the reasonable person test. Apply the factors to the facts of your problem question. For example, discuss how the low cost of a precaution, like providing safety goggles in Paris v Stepney, makes a breach more likely.
Causation and Remoteness: Linking Breach to Harm
It is not enough for the claimant to show a breach of duty; they must also prove that the breach caused the damage. This involves two stages: factual causation and legal causation.
Factual Causation: The 'But For' Test
The primary test for factual causation is the 'but for' test: but for the defendant's breach, would the claimant have suffered the harm? If the answer is no, then the defendant's breach is a factual cause of the harm.
In Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428, a man died of arsenic poisoning after a hospital negligently sent him home. However, the evidence showed he would have died anyway, so the hospital's negligence was not the 'but for' cause of his death.
Legal Causation: Novus Actus Interveniens
Legal causation requires that the harm was not too remote from the breach. A new intervening act (a novus actus interveniens) can break the chain of causation. This could be an act of a third party, the claimant, or a natural event.
In The Oropesa [1943] P 32, the court held that the intervening act must be something "unwarrantable, a new cause which disturbs the sequence of events, something that can be described as either unreasonable or extraneous or extrinsic."
Remoteness of Damage: The Wagon Mound Test
The modern test for remoteness of damage was established in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No. 1) [1961] AC 388. The test is whether the type of damage was reasonably foreseeable, not the extent of the damage.
- In The Wagon Mound No. 1, oil spilled into Sydney Harbour was set alight by sparks from welding work, causing a fire that damaged the claimant's wharf. The court held that while damage by oil pollution was foreseeable, damage by fire was not.
- However, as long as the type of injury is foreseeable, the defendant is liable for the full extent, even if it is greater than expected (the 'egg-shell skull' rule). See Smith v Leech Brain & Co Ltd [1962] 2 QB 405.
⚠️ Common Mistake
A common error is to confuse factual and legal causation. Always start with the 'but for' test. Only if that is satisfied should you then consider whether any intervening acts have broken the chain of causation or if the damage is too remote.
Defences to Negligence
Even if the claimant establishes all the elements of negligence, the defendant may be able to rely on a defence, which can either be a complete or partial defence.
Contributory Negligence
This is a partial defence under the Law Reform (Contributory Negligence) Act 1945. If the claimant has failed to take reasonable care for their own safety and this has contributed to their damage, their damages will be reduced by a percentage that the court deems just and equitable.
In Froom v Butcher [1976] QB 286, a driver's damages were reduced for failing to wear a seatbelt.
Volenti Non Fit Injuria (Consent)
This is a complete defence, meaning the claimant will receive no damages. The defendant must prove that the claimant had full knowledge of the nature and extent of the risk and willingly consented to it. It is difficult to establish, particularly in rescue or employment situations. See Haynes v Harwood [1935] 1 KB 146.
Illegality (Ex Turpi Causa Non Oritur Actio)
This defence argues that the claimant should not be able to recover damages for losses suffered while engaged in criminal activity. The leading case is Patel v Mirza [2016] UKSC 42, which established a policy-based approach.
| Defence | Effect | Key Requirement | Example Case |
|---|---|---|---|
| Contributory Negligence | Partial - reduces damages | Claimant failed to take reasonable care for their own safety | Froom v Butcher [1976] QB 286 |
| Volenti Non Fit Injuria | Complete - no damages | Voluntary assumption of risk | Morris v Murray [1991] 2 QB 6 |
| Illegality | Complete - no damages | Claimant engaged in illegal conduct | Gray v Thames Trains Ltd [2009] UKHL 33 |
Frequently Asked Questions (FAQ)
What is the difference between tort and contract law?
Tort law deals with civil wrongs and imposes duties of care on individuals, regardless of whether there is a contract. Contract law, on the other hand, governs agreements between parties and the enforcement of promises.
Can I be liable in negligence for an omission (a failure to act)?
Generally, there is no liability for a pure omission in English law. However, there are exceptions where there is a pre-existing relationship that imposes a positive duty to act, such as a parent-child or employer-employee relationship. See Stovin v Wise [1996] AC 923.
What is the standard of care for a professional?
The standard of care for a professional is that of a reasonably competent professional in that field. This is known as the Bolam test, from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Does the 'egg-shell skull' rule apply to the claimant's financial state?
No, the 'egg-shell skull' rule applies to the claimant's physical or psychological vulnerability, not their financial state. The defendant must take their victim as they find them. See Lagden v O'Connor [2003] UKHL 64.
Is it difficult to prove causation in medical negligence cases?
Yes, proving causation can be very challenging in medical negligence cases, especially when the patient was already ill. The claimant must show that 'but for' the doctor's negligence, their condition would have been better. See Gregg v Scott [2005] 2 AC 176.