Legal Negligence Guide

Introduction

Negligence in tort concerns a breach of a duty of care that causes damage. To establish liability, a claimant must prove four elements: duty, breach, causation and damage. Each must be present; if any one fails, the claim fails.

Modern law builds on Donoghue v Stevenson (the neighbour principle) and the three-stage approach in Caparo v Dickman (foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty). The standard of care is objective and context-specific, with tailored rules for professionals (Bolam and Bolitho) and healthcare consent (Montgomery). Causation involves both the factual “but for” test and legal limits through remoteness and intervening acts. Finally, claimants must show actual loss, which can be physical, psychiatric or certain forms of financial loss.

This guide sets out the essentials with clear concepts, leading cases, and practical steps for applying the law in problem questions and real files.

What You'll Learn

• How to establish a duty of care using Donoghue v Stevenson and the Caparo test
• How courts assess breach against the reasonable person and professional standards (Bolam, Bolitho, Montgomery)
• How to prove causation using the “but for” test, address intervening acts, and assess remoteness
• What amounts to damage: physical injury, psychiatric harm, and financial loss, including limits on pure economic loss
• Key cases you should know and how to apply them to common scenarios
• Practical steps to build, defend, or assess a negligence claim

Core Concepts

Duty of Care

• General principle: A duty arises where harm is reasonably foreseeable, there is a relationship of proximity, and it is fair, just and reasonable to impose a duty (Caparo Industries v Dickman [1990] 2 AC 605).
• Neighbour principle: Donoghue v Stevenson [1932] AC 562 introduced a general duty to take reasonable care to avoid acts or omissions likely to injure those closely and directly affected.
• Incremental approach: New duties are recognised cautiously, by analogy with established categories and policy considerations.
• Typical duty situations:
  • Manufacturers to consumers (Donoghue v Stevenson)
  • Drivers to road users
  • Employers to employees (safe system of work)
  • Professionals to clients/patients; special features apply (see Breach of Duty)
• Courts may decline to impose a duty if it would be unfair or open floodgates, particularly with public bodies or pure omissions, unless an established exception applies.

Breach of Duty and Standard of Care

• Objective test: Did the defendant act as a reasonable person would in the circumstances?
• Factors commonly weighed:
  • Likelihood of harm
  • Seriousness of potential harm
  • Cost and practicality of precautions
  • Utility of the defendant’s conduct (e.g. emergencies)
• Professionals:
  • Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: No breach if the professional acted in accordance with a responsible body of opinion in that field.
  • Bolitho v City and Hackney HA [1998] AC 232: The professional opinion relied on must be capable of withstanding logical analysis.
  • Montgomery v Lanarkshire Health Board [2015] UKSC 11: Informed consent is patient-centred; doctors must take reasonable care to ensure patients are aware of material risks and reasonable alternatives.
• Learners are generally held to the standard of the reasonably competent person undertaking that activity, not a lower “trainee” standard.

Causation and Remoteness

• Factual causation:
  • The “but for” test: But for the breach, would the harm have occurred? Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 shows how a claim can fail where the outcome would have been the same.
  • Multiple causes: Courts may consider material contribution or apportionment in appropriate cases; keep an eye on the evidence.
• Legal causation (remoteness):
  • The type of damage must be reasonably foreseeable.
  • Intervening acts (novus actus interveniens) can break the chain; reasonable rescue attempts usually do not break the chain (Haynes v Harwood [1935] 1 KB 146).
  • Thin skull rule: The defendant takes the claimant as they find them; unexpected extent of injury does not defeat causation if the kind of harm was foreseeable.
• Policy and fairness often guide whether the chain is intact, but the starting point remains factual causation and foreseeability.

Damage (Loss)

• Physical injury and property damage: Readily recoverable if caused by the breach.
• Psychiatric harm:
  • Recognised as recoverable; Dulieu v White [1901] 2 KB 669 accepted recovery for shock-induced injury.
  • Additional control mechanisms apply (e.g. primary/secondary victim rules in later cases), including proximity in time and space, and relationship with the injured party.
• Financial loss:
  • Consequential economic loss flowing from physical damage is recoverable.
  • Pure economic loss is restricted; courts are careful about imposing duties for pure financial loss unless special assumptions of responsibility arise (e.g. negligent advice).
  • Claims for negligent professional services may be framed in tort; careful analysis of scope of duty and reliance is required.
• Proof: The claimant must establish loss on the balance of probabilities and show it was caused by the breach. Chester v Afshar [2004] UKHL 41 discusses causation in the consent context.
• No damage, no claim: Without actual loss (physical, psychiatric, or qualifying financial loss), negligence fails (see references such as Beary v Pall Mall Investments 2005 PNLR 35).

Key Examples or Case Studies

• Donoghue v Stevenson [1932] AC 562

  • Context: Manufacturer’s duty to ultimate consumer after a decomposed snail was found in ginger beer.
  • Key point: The neighbour principle created a general duty to take reasonable care to avoid foreseeable harm to those closely affected.
  • Application: Forms the basis for product liability in negligence.

• Caparo Industries v Dickman [1990] 2 AC 605

  • Context: Investors sued auditors, claiming reliance on audited accounts.
  • Key point: Three-stage approach to duty: foreseeability, proximity, and whether imposing a duty is fair, just and reasonable.
  • Application: Limits duties for pure economic loss; not every foreseeable loss creates a duty.

• Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bolitho v City and Hackney HA [1998] AC 232

  • Context: Standard of care for professionals.
  • Key point: Acting in line with a responsible body of opinion may avoid breach (Bolam), but that opinion must be logical (Bolitho).
  • Application: Expert evidence is central; courts test the reasoning, not just the existence of a practice.

• Montgomery v Lanarkshire Health Board [2015] UKSC 11

  • Context: Failure to warn of material risks in childbirth.
  • Key point: Consent is assessed from the patient’s point of view; doctors must advise of material risks and alternatives.
  • Application: In medical cases, breach may arise from poor communication, not just technical treatment.

• Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428

  • Context: Hospital failed to examine a patient who later died from arsenic poisoning.
  • Key point: “But for” causation failed; the death would have occurred anyway.
  • Application: Even clear breaches do not lead to liability without factual causation.

• Haynes v Harwood [1935] 1 KB 146

  • Context: Police officer injured while stopping runaway horses set loose by the defendant’s negligence.
  • Key point: Rescue attempts are a foreseeable response; they do not break the chain.
  • Application: Defendants can be liable for injuries suffered by reasonable rescuers.

• Dulieu v White [1901] 2 KB 669

  • Context: Claimant suffered nervous shock when a carriage crashed into a pub.
  • Key point: Psychiatric harm can be actionable even without physical impact.
  • Application: Opened the door to claims for recognised psychiatric injury, subject to later controls.

• Dutton v Bognor Regis UDC [1972] 1 QB 373

  • Context: Negligent building inspection led to defects.
  • Key point: Early willingness to allow claims for defective buildings.
  • Application: Be cautious: later authority (e.g. Murphy v Brentwood DC [1991] 1 AC 398) significantly restricted recovery for pure economic loss in defective property cases.

• Chester v Afshar [2004] UKHL 41

  • Context: Failure to warn of a small but serious risk which eventuated.
  • Key point: Approach to causation in consent cases where proper warning would have led to consideration of alternatives or timing.
  • Application: Informed consent can raise distinct causation issues from standard “but for” analysis.

Practical Applications

• Analysing a potential claim

  • Map the four elements: duty, breach, causation, damage.
  • Duty: Identify established categories; if novel, apply Caparo and policy considerations.
  • Breach: Compare conduct to the reasonable person standard; weigh risk, seriousness, and cost of precautions. In professional cases, obtain expert evidence and test it against Bolam/Bolitho. For consent, assess material risks per Montgomery.
  • Causation: Run the “but for” test; address multiple causes, possible intervening acts, and foreseeability of the type of harm. Consider rescue situations and the thin skull rule where relevant.
  • Damage: Document physical, psychiatric, and financial loss. For psychiatric harm, ensure the medical evidence supports a recognised condition. For financial loss, distinguish consequential loss from pure economic loss.

• Evidence and procedure

  • Gather contemporaneous records: contracts, notes, medical records, risk assessments, and witness statements.
  • In professional negligence, instruct an independent expert early to address standard of care and causation.
  • Quantify loss with clear schedules: treatment costs, earnings, care, and property damage.
  • Consider limitation: generally three years for personal injury and six years for other negligence claims (subject to discoverability and special rules).

• Risk management for organisations and professionals

  • Implement and document risk assessments and training.
  • Use clear client care letters and records of advice, especially around options and risks.
  • Review practices against current professional standards and guidance.
  • Be mindful that exclusions of liability for death or personal injury caused by negligence are ineffective under the Unfair Contract Terms Act 1977; other losses may also be restricted by statute.

• Common defences and reductions

  • Contributory negligence can reduce damages where the claimant failed to take reasonable care for their own safety.
  • Voluntary assumption of risk (rare in practice).
  • Breaks in the causal chain or unforeseeable types of damage.

Summary Checklist

• Identify a recognised duty or apply the Caparo test for new duty situations
• Set the standard of care and test breach using the reasonable person factors
• In professional cases, apply Bolam/Bolitho; for medical consent, apply Montgomery
• Prove factual causation with the “but for” test; consider intervening acts and rescue
• Check remoteness: was the type of harm foreseeable?
• Prove actual damage: physical, psychiatric (recognised condition), or qualifying financial loss
• Prepare robust evidence: documents, witnesses, and expert reports where needed
• Consider defences and the possibility of contributory negligence
• Confirm limitation periods and any statutory constraints

Quick Reference