Negligence in Tort Law

To succeed in a claim for negligence, the claimant must establish three elements on the balance of probabilities: (1) the defendant owed the claimant a duty of care, (2) the defendant breached that duty, and (3) the breach caused the claimant's loss, which was not too remote.

The modern law of negligence traces its origins to Donoghue v Stevenson [1932] AC 562, where Lord Atkin formulated the neighbour principle: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." This established that manufacturers owe a duty of care to the ultimate consumer.

The modern test for establishing a duty of care in novel situations is the three-stage test from Caparo Industries plc v Dickman [1990] 2 AC 605:

(1) Foreseeability: Was it reasonably foreseeable that the defendant's conduct could cause harm to the claimant? This is assessed objectively.

(2) Proximity: Was there a sufficiently close relationship between the parties? This encompasses physical proximity, temporal proximity, and relational proximity (e.g., doctor-patient, employer-employee).

(3) Fair, just and reasonable: Is it fair, just and reasonable to impose a duty? This is a policy consideration that allows courts to limit liability where appropriate.

The Supreme Court in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 clarified that the Caparo test should only be applied in novel situations. Where an established duty of care exists (e.g., road users, employers, occupiers), it should be applied directly without re-running the three-stage test.

Once a duty of care is established, the claimant must show that the defendant fell below the standard of the reasonable person (Blyth v Birmingham Waterworks [1856]). The standard is objective — the defendant is judged against what a reasonable person in their position would have done.

Factors the court considers include: the probability of harm (Bolton v Stone [1951] AC 850 — low probability of a cricket ball escaping the ground), the severity of potential harm (Paris v Stepney BC [1951] AC 367 — higher standard for a one-eyed worker), the cost of precautions (Latimer v AEC [1953] AC 643), and the social utility of the defendant's activity (Watt v Hertfordshire CC [1954] 1 WLR 835).

Professionals are judged by the standard of a reasonably competent practitioner in their field (Bolam v Friern Hospital [1957] 1 WLR 582), as modified by Bolitho v City and Hackney HA [1998] AC 232 (the body of opinion must be capable of withstanding logical analysis).

Factual causation is established using the "but for" test: but for the defendant's breach, would the claimant have suffered the loss? (Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 — even if the hospital had not been negligent, the patient would have died anyway from arsenic poisoning).

Where there are multiple causes, the "but for" test may be modified. In Fairchild v Glenhaven Funeral Services [2002] UKHL 22, the House of Lords held that where multiple employers had each exposed the claimant to asbestos and it was impossible to identify which exposure caused the mesothelioma, each employer could be held liable if they had materially increased the risk of harm.

Legal causation asks whether the chain of causation has been broken by a novus actus interveniens (new intervening act). This may be an act of the claimant, a third party, or a natural event. The chain is only broken if the intervening act was unforeseeable and independent of the defendant's breach.

Even where causation is established, the defendant is only liable for damage that is not too remote. The test is from The Wagon Mound (No 1) [1961] AC 388: the defendant is liable only for damage of a type that was reasonably foreseeable at the time of the breach.

The claimant need not show that the precise manner or extent of the damage was foreseeable — only the type. In Hughes v Lord Advocate [1963] AC 837, the type of injury (burns) was foreseeable even though the precise mechanism (an explosion) was not.

The thin skull rule (or "eggshell skull" rule) provides that the defendant must take the claimant as they find them. If the claimant has a pre-existing vulnerability that makes their injuries worse than expected, the defendant is liable for the full extent of the injury (Smith v Leech Brain [1962] 2 QB 405).

Contributory negligence: Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced to the extent that the claimant was partly responsible for their own loss. The court considers the claimant's share of responsibility for the damage.

Volenti non fit injuria (consent): A complete defence where the claimant voluntarily assumed the risk of harm. The claimant must have had full knowledge of the nature and extent of the risk (ICI v Shatwell [1965] AC 656). It rarely succeeds in employer-employee cases.

Illegality (ex turpi causa): A claimant may be denied recovery if they were engaged in illegal activity at the time of the injury. The Supreme Court in Patel v Mirza [2016] UKSC 42 adopted a flexible approach based on public policy considerations.