Keith Mack
Negligence is a tort under UK law. A tort is a civil wrongdoing, whether intentional or negligent, that causes harm or loss to another person, resulting in legal liability. The tort of negligence is a legal wrong suffered by someone due to another person's failure to take proper care to avoid foreseeable risks. To establish negligence, the claimant must prove four elements: duty of care, breach of that duty, causation, and loss. The case of Donoghue v Stevenson (1932) is often quoted as the foundation for the current law, where the claimant successfully argued for a duty of care despite the absence of a direct contract. Negligence law aims to address unintentional acts or omissions and set standards for behaviour in communal interactions.
| Characteristics | Values |
|---|---|
| Time limit for claims | Six years from the date the claimant had a valid claim |
| Time limit for personal injury claims | Three years from the date the injury occurred |
| Tort law definition | A civil wrongdoing, whether intentional or negligent, where an individual suffers a loss or harm, resulting in legal liability for the person who caused it |
| Negligence definition | A tort under English law; an act or omission, other than a breach of contract, that causes harm or loss to another person, resulting in legal liability |
| Negligence occurrence | When someone does not provide or adhere to the standard of care that a reasonable person would in similar circumstances |
| Elements of negligence | Duty of care, breach of that duty, causation, and loss (compensated by damages) |
| Defences available | Psychiatric injury, economic loss, for public bodies, and when concerning omissions and third parties |
| Categories of torts | Intentional, negligence, and strict liability |
| Examples of negligence | Slip and fall accidents, vehicle accidents, pedestrian accidents, medical malpractice |
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What You'll Learn
Duty of care
There are two ways in which a duty of care may be established. The first is that the defendant and claimant are within one of the recognised relationships where a duty of care is established by precedent. The second is outside these relationships, according to the principles developed by case law.
The case of Donoghue v Stevenson in 1932 is often quoted as the foundation for the current law. In this case, a woman successfully argued that she was owed a duty of care by the manufacturer of ginger beer, despite the deficient goods being bought by a friend and not herself, so no contract existed between the manufacturer and the person suffering the damage. This established the principle that we each have a duty of care to our neighbour, or someone we could reasonably expect to be affected by our acts or omissions.
The duty of care concept has expanded into a coherent judicial test, which must be satisfied in order to claim negligence. A duty of care arises where one individual or group undertakes an activity that could reasonably harm another (or themselves), either physically, mentally, or economically.
The police, for example, have a duty to ensure firearms access is only given to suitable people, and to treat confidential information diligently. However, the courts have ruled that the police do not have a duty to protect, support or assist a witness, and that local authorities are not liable for their decision-making.
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Breach of duty
In the UK, negligence is a "tort" under English law. A tort is an act or omission, other than a breach of contract, that causes harm or loss to another person, resulting in legal liability. To establish negligence in the UK, the claimant must prove four elements: duty of care, breach of that duty, causation, and loss (compensated by damages).
The standard of care is defined as the measures that a reasonable person in the defendant's circumstances would take to reduce the risk of harm. This standard can vary over time and is influenced by factors such as the specific skills or experience of the defendant. For example, a novice in a certain skill area, such as a learner driver, is expected to meet the standard of a reasonably competent person with that skill.
Determining whether the defendant has acted reasonably or is in breach of duty involves weighing factors such as the defendant's knowledge and the degree of risk. The greater the risk of serious harm, the more precautions the defendant is expected to take.
In certain contexts, such as sports events, the standard of care expected may differ from that of a reasonable person outside such events. For example, in Paris v Stepney Borough Council (1951), it was held that a participant in a sports event would only be in breach of duty towards other participants and spectators if they showed "reckless disregard for their safety".
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Causation
In the context of tort negligence, causation involves proving that the defendant's breach of the duty of care caused the claimant's injury or loss. This means establishing a causal connection between the defendant's failure to uphold the expected standard of care and the harm suffered by the claimant. The fundamental question at the heart of causation is, "but for" the defendant's negligence, would the injury or loss have occurred? This is known as the "but-for" test, a counterfactual analysis that helps determine whether the defendant's actions or inactions were the cause of the claimant's negative outcome.
The "but-for" test is not without its limitations and has been criticised for producing absurd and anomalous results in certain situations. For instance, in cases with multiple potential causes, it can be challenging to prove that the defendant's negligence was the primary or most significant contributing factor. In such cases, the claimant must demonstrate that the breach of duty of care resulted in avoidable harm that would not have occurred otherwise. This can be particularly complex in medical negligence cases, where underlying medical issues or pre-existing conditions may come into play.
To establish causation successfully, it is often necessary to obtain compelling medical evidence that confirms the injury or loss resulted from the breach of duty of care. This evidence may include medical reports, expert opinions, and other relevant documentation. In some instances, a combination of case law and academic writing may also contribute to the understanding and interpretation of causation, particularly in clinical negligence scenarios.
It is worth noting that the absence of causation does not necessarily absolve the defendant of all responsibility. In certain situations, the defendant's negligence may be a contributing factor, even if it is not the sole or most significant cause. Additionally, in loss of chance cases, the court assesses hypothetical outcomes to determine if the defendant's negligence deprived the claimant of an opportunity to obtain a benefit or avoid a loss.
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Loss
To establish negligence in the UK, the claimant must prove four elements: duty of care, breach of that duty, causation, and loss (compensated by damages). This final element, loss, refers to the financial losses related to the negligence, which can be claimed even if the claimant was partially at fault. This is known as contributory negligence, though compensation may be reduced in proportion to the claimant's share of the fault.
In another case, Anns v Merton London Borough Council, the claimant bought a property that began to decline due to defects in the plans that had been approved by the local authority, the defendant in this case. The claimant was unable to afford the required repairs and was forced to sell the property at a loss. However, the court refused to follow its previous ruling and found that the defendant was not liable, as the damage suffered by the claimant could not be considered material or physical.
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Defences
Consent
If the claimant consented to the act that caused the harm, the defendant may not be held liable. For example, if an individual signs a waiver for a skydiving experience and gets injured while jumping, the consent defence can be employed since the individual agreed to take the risks associated with the activity.
Self-defence
Self-defence allows individuals to protect themselves from actual or imminent harm. It is a defence against tortious claims and a principle that emphasizes the right to self-preservation.
Necessity
The necessity defence arises when an individual commits a tortious act to prevent a greater harm. This can be classified into public necessity and private necessity. An "Act of God", referring to unforeseen natural events like earthquakes or floods, can also be a defence in tort cases, particularly negligence, where the individual's actions were not the cause of the harm.
Illegality
If the claimant was involved in illegal activity at the time of the harm, they may be unable to claim compensation. For example, if damage occurs within the context of an illegal act, it is against public policy to sue.
Contributory Negligence
This defence suggests that the claimant contributed to their injury through a lack of care. Prior to 1945, contributory negligence was a full defence, meaning the court could find the claimant entirely liable for their injury. However, since the Law Reform (Contributory Negligence) Act 1945, contributory negligence does not result in 100% liability. Awards may be reduced if the claimant was aware of the risk but declined to take appropriate precautions.
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