Negligence in English Tort Law

Introduction

The tort of negligence is the most important and expansive tort in English law. It provides a remedy for harm caused by the failure to take reasonable care, protecting individuals against physical injury, damage to property, and, in limited circumstances, economic loss. The modern law of negligence was established by Donoghue v Stevenson (1932), which introduced the neighbour principle as the foundation of a general duty of care. The elements of a claim in negligence are: a duty of care owed by the defendant to the claimant; breach of that duty by falling below the required standard of care; and damage caused by the breach that is not too remote.

Duty of Care

The existence of a duty of care is the first element of a negligence claim. The modern test for the existence of a duty of care was established in Caparo Industries plc v Dickman (1990), in which the House of Lords articulated a three-stage test: the harm must be reasonably foreseeable; there must be a relationship of proximity between the parties; and it must be fair, just, and reasonable to impose a duty.

The three-stage test is applied incrementally, by analogy with established categories of duty. The courts have recognised duties of care in a wide range of situations, including: road users (Nettleship v Weston (1971)); employers to employees; occupiers to visitors; doctors to patients; and manufacturers to consumers.

The categories are not closed, and novel duties may be recognised where the three-stage test is satisfied. However, the courts have been reluctant to extend the duty of care in cases of pure economic loss and omissions.

Breach of Duty

The test for breach of duty is whether the defendant fell below the standard of care expected of a reasonable person in the circumstances. The standard is objective: the defendant is expected to exercise the care that a reasonable person would exercise, regardless of their individual characteristics.

The court considers the probability of harm (the greater the risk, the more care required), the seriousness of the potential harm (greater care is required where the potential harm is severe), the utility of the defendant’s conduct (less care is required where the defendant is acting for a socially useful purpose), and the practicality of precautions (the court considers whether it was reasonable to expect the defendant to take precautions against the risk).

For professionals, the standard is that of a reasonably competent practitioner in the relevant field, assessed by reference to the Bolam test (professional opinion).

Causation

The claimant must prove that the breach of duty caused the damage. The test for factual causation is the but for test: but for the defendant’s breach, would the damage have occurred? If the answer is no, causation is established. If the damage would have occurred anyway, causation is not established.

Where there are multiple possible causes, the court may apply the material contribution test (Bonnington Castings v Wardlaw (1956)) or the material increase in risk test (Fairchild v Glenhaven Funeral Services (2002)). These tests relax the strict but for test where the medical or scientific evidence cannot establish the precise causal mechanism.

Remoteness of Damage

The damage must not be too remote a consequence of the breach. The test for remoteness was established in The Wagon Mound (No 1) (1961): the defendant is liable only for damage of a kind that was reasonably foreseeable at the time of the breach.

The eggshell skull rule provides that the defendant takes the claimant as they find them: if the claimant has a pre-existing vulnerability that makes the harm more severe, the defendant is liable for the full extent of the harm, even if that extent was not foreseeable.

Defences

The defences to a claim in negligence include: contributory negligence (the claimant’s own negligence contributed to the damage, resulting in a reduction of damages); volenti non fit injuria (the claimant voluntarily assumed the risk of harm); and illegality (the claim arises from the claimant’s own criminal conduct).

Conclusion

Negligence is the principal tort in English law, providing a remedy for harm caused by the failure to take reasonable care. The Caparo three-stage test for duty of care, the objective standard for breach, and the rules on causation and remoteness provide a structured framework for determining liability that balances the interests of claimants, defendants, and the public.