Introduction
The concept of negligence, a cornerstone of tort law, addresses situations in which individuals or entities fail to exercise reasonable care, resulting in harm to others. Negligence cases arise when a party's actions or omissions fall below a legally prescribed standard of conduct, thereby causing foreseeable injury or loss. The technical principles central to negligence are the existence of a duty of care, a breach of that duty, and a demonstrable causal relationship between the breach and the harm suffered. Key requirements include the establishment of a legal obligation to act with reasonable care, a failure to meet that standard, and direct evidence that the defendant's actions directly contributed to the claimant's damages. This analysis requires a meticulous application of legal tests and principles, which will be elaborated in this article.
Establishing a Duty of Care
A crucial element in all negligence cases is the existence of a duty of care. The duty of care establishes a legal obligation to act with reasonable care to avoid causing harm to others. This is not a universal duty but a particular obligation arising in legally recognized circumstances or relationships. The seminal case of Donoghue v Stevenson ([1932] AC 562) laid the foundation for modern negligence law, introducing the "neighbour principle," which posits that a duty of care is owed to those who are so closely and directly affected by one's actions that they are reasonably in contemplation when directing one's mind to those actions.
Over time, this principle has been refined to require not only foreseeability of harm, but also a close relationship between the defendant and the claimant and also that it is just, fair and reasonable to impose a duty of care. These considerations were affirmed in Caparo Industries plc v Dickman ([1990] 2 AC 605), where the House of Lords rejected a broad application of the neighbour principle in cases of pure economic loss. Rather, they introduced a three-stage test for establishing a duty of care: foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
In Robinson v Chief Constable of West Yorkshire Police ([2018] UKSC 4), the Supreme Court stressed the importance of the incremental approach when determining whether a duty of care should be recognised. The court also stated that established principles of negligence should apply to public authorities.
Examples
- Motorists: A driver has a duty of care to other road users (including pedestrians), as foreseeable harm will be caused by negligence. (See, Nettleship v Weston [1971] 2 QB 691).
- Medical professionals: Doctors and other medical practitioners owe a duty of care to their patients, requiring them to act with the standard of care that would be expected of any other professional in their field. (See, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).
- Employers: An employer has a duty of care to their employees to take reasonable precautions to ensure the employee’s health and safety while at work. See, Paris v Stepney Borough Council [1951] AC 367.
- Occupiers: Those in control of land or buildings have a duty of care to visitors to ensure their reasonable safety. (See, Occupiers' Liability Act 1957).
Breach of the Duty of Care
Once a duty of care is established, the claimant must demonstrate that the defendant breached that duty by failing to meet the prescribed standard of care. The standard of care is based on a hypothetical reasonable person in the same situation. It is not a measure of perfection but of what is deemed reasonable in the specific circumstances. In cases involving professionals, the standard of care is determined by what is commonly accepted as proper and reasonable by other members of that particular profession (Bolam test), although this test may be departed from if the common practice is unreasonable in itself (Bolitho v City of Hackney Health Authority [1998] AC 232).
Examples
- A doctor administers a treatment that departs significantly from generally accepted medical practices and causes a patient harm, they may be liable for a breach of the duty of care, if it could not be said to be a ‘logical’ action to have taken based upon medical practice and common knowledge.
- A retailer fails to identify and remedy a slippery floor in its store and a customer slips and suffers harm.
- An employer failed to warn employee of dangerous chemicals and the employee becomes injured or ill.
- A driver operates a vehicle at speeds exceeding the speed limit and as such suffers an accident, breaching the standard of a competent driver. In
- The failure to take reasonable steps to protect people from a real and immediate risk of suicide, constitutes a breach of an operational duty under Article 2. See, Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72
Causation
A claimant must show that the defendant’s breach of duty was a cause of the harm that they have suffered. Causation is often analysed by applying the ‘but for’ test, under which a defendant will only be liable for negligence if it is found that but for that negligence the claimant would not have suffered that harm. A number of issues have arisen that make the ‘but for’ test difficult to apply in certain circumstances and so the courts have developed alternative principles to establish causation.
Factual Causation
To establish causation, a claimant needs to prove, on the balance of probabilities, that the breach of duty was a factual cause of the loss or injury. However, it is not always possible to pinpoint a single cause. As such, English law has developed the ‘material contribution test’, which posits that a defendant can still be liable if his negligent actions contributed to the harm sustained, provided it was ‘material’ and non-negligible. Bonnington Castings Ltd v Wardlaw [1956] AC 613 is an example.
In cases of scientific uncertainty regarding causation, the ‘material increase in risk’ test may apply (Fairchild v Glenhaven Funeral Services [2003] 1 AC 32). Under this approach, where there is uncertainty about the precise mechanisms of the harm suffered, it is sufficient to establish that the defendant’s actions materially increased the risk of the harm. However, it is important to note that this is an exception to the general rule (see Heneghan v Manchester Dry Docks [2016] EWCA Civ 86), and that if the claimant cannot show that the defendant caused or materially contributed to the illness, and only that they increased risk, this exception will not be applicable. For example in Gregg v Scott [2005] 2 AC 176 it was held that although the defendant’s misdiagnosis reduced the claimant’s chances of recovery, there was no causation as it was never more likely than not that he would have recovered in any event.
Legal Causation
The issue of legal causation relates to remoteness and novus actus interveniens (a new intervening act). Even if factual causation can be established, a break in the chain of causation may result in the defendant not being held liable. Remoteness requires that the damage was foreseeable, of the ‘kind’ of harm which one could expect to flow from the defendant’s actions. In terms of novus actus interveniens, a deliberate, free and conscious act by a third party may break the chain of causation between the act of the original tortfeasor and the damage. However, a reasonable act of a third party in response to the act of the tortfeasor will not constitute such a break. This principle is best illustrated in the cases of Haynes v Harwood and The Oropesa [1943] P 32, respectively. Where the third party’s act was not fully voluntary and conscious (due to some outside factor), this will not break the chain of causation. This is illustrated by the case of Corr v IBC Vehicles [2008] 2 AC 1009 where a man injured through employer’s negligence committed suicide as a result. It was held that the suicide was not a voluntary act and therefore, did not break the chain of causation.
However, it should be noted that a voluntary act by the claimant himself is more likely to break the chain of causation unless this was the exact thing a defendant was required to guard against as in the case of Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.
Examples
- A doctor failed to diagnose a patient who had presented with a number of symptoms. It can be shown that if properly diagnosed, there would have been a greater chance of recovery, that is more than minimal but less than probable; but the claimant still dies: In this case it may be shown that the doctor’s negligence was a material increase in risk that the death would occur but not necessarily the cause of the death, which would have occurred in any event.
- A driver negligently crashes into another car. If the injured party suffers further injuries as a result of negligent medical treatment provided as a result of that crash, those further injuries may also be recoverable provided that the provision of the negligent medical treatment was foreseeable.
- A defendant negligently causes a minor car accident, and the claimant who was also negligent in not wearing a seatbelt suffers further injuries as a consequence of that lack of safety precaution. Here the courts would divide liability for the injuries between the parties.
- An employer negligently expose an employee to asbestos, causing mesothelioma. The employer is found liable for creating a material increase of the risk of the employee contracting this illness, even though it is impossible to know precisely which exposure caused the cancer to arise in that individual.
Conclusion
Negligence cases involve a structured approach of analyzing duty, breach, causation and the requirements for establishing them. As has been shown above, there are a number of different tests and standards that will apply to the many varying circumstances where negligence can occur. However, these tests and approaches provide a relatively consistent and coherent model for resolving cases that are brought before the courts and for assessing liability. The cases that have been cited form the basis of a wide ranging application of the law of negligence that touches on all aspects of our everyday lives. By exploring the key principles such as duty of care, breach, causation and remoteness, this document provides an understanding of the complexities of the tort of negligence and highlights the importance of understanding the legal principles that underpin this area of law. In this context the application of rules, regulations and guidance ensures that the courts maintain a consistent approach when addressing matters which are brought before them.