Note: Substitute ‘Claimant’ and ‘Defendant’ for the names given in the fact pattern
TORT OF NEGLIGENCE
INTRODUCTION
Negligence is defined as a breach of legal duty of care owed to the claimant that results in harm to the
claimant, undesired by the defendant. When seeking a claim in the tort of negligence, it is necessary
to prove the following elements:
a) Legal duty of care;
b) Breach of duty;
c) Causation of harm.
The burden of proving each of these elements, and thus whether a defendant has committed the tort,
lies with the claimant. The claimant must prove their case on the balance of probabilities. Here [state
name] is the claimant and has suffered [state injury]; [state name] is the defendant.
DUTY OF CARE
In order to make a claim in negligence against Defendant, Claimant first needs to explore whether
they were owed a duty of care and whether Defendant could be liable for nonfeasance. The general
rule is that there is no liability for omissions (Stovin v Wise), unless there is a special relationship of
control, in which case there will be a duty to act positively to safeguard or prevent harm.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Damage to In Smith v Littlewoods Organisation, there was no duty of care owed:
neighbouring property the defendant had no control over the vandals and no special
by third parties relationship with the claimant.
School/children In Carmarthenshire County Council v Lewis, the school had assumed
responsibility for controlling the child; they owed a duty of care to the
driver that swerved to avoid the child.
Claimant is a rescuer Where a defendant’s actions have created a dangerous situation so that
it is reasonably foreseeable that someone may attempt a rescue, the
defendant owes a duty of care to the rescuer (Baker E Hopkins & Son
Ltd).
Defendant is a rescuer If a person decides to intervene when they do not owe a duty to act, they
will not be liable in negligence unless they positively make matters
worse (East Suffolk Rivers Catchment Board v Kent and another).
Novel duty situation As this is a novel duty situation, the three factors of Caparo test must be
explored:
1) Reasonable foresight of harm to the claimant;
2) Sufficient proximity of relationship between the claimant and
the defendant;
3) That it is fair, just and reasonable to impose a duty.
,BREACH OF DUTY
Defendant will be expected to meet the standard of care of: [state as appropriate]
A reasonable [state profession] (Blyth v Birmingham Waterworks)
A reasonably competent driver, regardless of their level of skill (Nettleship v Weston)
A reasonable person with their particular skill/profession (Bolam v Friern Hospital
Management Committee), even if they are under-skilled (Wilsher v Essex Area Health
Authority)
An ordinary child of the same age (Mullin v Richards)
When assessing the degree of care expected of Defendant, it is also important to consider four key
factors:
(a) magnitude of risk;
(b) practicability of precautions;
(c) purpose of the defendant’s behaviour;
(d) the defendant’s current state of knowledge.
Likelihood of Risk
It may be justifiable not to take steps to eliminate a real risk if the risk of injury is small and a
reasonable person would think it right to neglect it (Bolton v Stone). Apply to facts.
Seriousness of Risk
If the defendant knows that a particular individual runs a risk of suffering greater damage than
normal, this may increase their obligations. Apply to facts.
Cost and Practicability of Precautions
If the risk of injury is slight compared to a substantial cost and inconvenience, the defendant’s
decision may be considered reasonable (Latimer v AEC Ltd). Apply to facts.
Purpose of Defendant’s Behaviour
If human life is at stake/the activity has social utility, a defendant may be justified in taking abnormal
risks (Watt v Hertfordshire County Council). Apply to facts.
Current State of Knowledge
The defendant’s activities must be judged in light of the knowledge available to the defendant at the
time of the event (e.g. current standard of knowledge in the world) – Roe v Ministry of Health. Apply
to facts.
*If unable to prove how the accident took place, consider res ipsa loquitor*
Res ipsa loquitor
The courts may be prepared to draw an inference of negligence against the defendant provided the
following three conditions are met (Scott v London and St Katherine Docks Co):
1) The thing causing the damage must be under the control of the defendant or someone for
whom the defendant is responsible;
2) The accident must be such as would not normally happen without negligence;
3) The cause of the accident must be unknown to the claimant.
, If the above conditions are met, a prima facie inference of negligence will be raised against the
defendant. The defendant must then provide a reasonable explanation of how the damage could
have occurred without negligence, such as evidence of how the damage actually occurred (i.e. this
wasn’t due to negligence on their part) or that they had, at all time, used reasonable care (if they
cannot show how the accident actually happened.
CAUSATION OF HARM
Finally, for Claimant’s claim against Defendant to succeed, it must be proved that they were the
factual and legal causation of their harm. Factual causation can be proved using the ‘but for’ test
(Barnett v Chelsea and Kensington Hospital Management Committee): but for [state breach] would
Claimant have suffered harm? Here… [apply to facts].
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Multiple Causes If there are multiple causes of the damage, it is enough to show the breach
materially contributed to the damage (Bonnington Castings v Wardlaw).
However, if there are several possible alternatives, the claimant may fail to
prove that the defendant’s breach of duty caused the harm on the balance
of probabilities (Wilsher v Essex Area Health Authority).
Mesothelioma In a case of mesothelioma/scientific uncertainty, the claimant must show
(scientific the breach caused a material increase in the risk of injury (Sienkiewicz v
uncertainty) Greif (UK) Ltd). Each defendant will be liable for the whole of the
claimant’s harm, not just to the extent of their contribution to the risk (s.3
Compensation Act 2006).
Divisible Injury In cases of divisible injury (e.g. asbestosis), the court will apportion the
damage accordingly and the claimant will need to sue several defendants
to claim damages in full (Holtby v Brigham and Cowan (Hull) Ltd)
Indivisible Injury In cases of indivisible injury, the claimant is entitled to recover his
damages in full from any defendant. The defendant who may seek a
contribution from the other parties under ss.1(1) and 2(1) Civil Liability
(Contribution) Act 1978.
Subsequent Injuries In cases of multiple injuries, a later defendant causing a subsequent injury
will be liable only to the extent that they make the damage worse
(Performance Cars v Abraham).
Claimant must also prove that the chain of causation was not broken by any intervening acts.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Foreseeable The general rule is that the chain of causation is unlikely to be broken by
Consequence an action which the defendant ought to have foreseen as a likely
consequence of their negligence (e.g. Stansbie v Troman).
Third Party Negligent intervention by a third party will break the chain of causation
Intervention where the defendant could not have reasonably foreseen their intervention
as a likely consequence of their negligence (Knightley v Johns).
, Instinctive Reaction An instinctive reaction by a third party will not break the chain of
causation (Scott v Shepherd).
Medical Negligence Medical negligence will not break the chain of causation unless it is
grossly negligent and a completely inappropriate reaction to the claimant’s
injury (Rahman v Arearose).
Claimant’s Actions If the claimant’s actions are entirely unreasonable in the circumstances,
this is likely to break the chain of causation (McKew v Holland & Hannen
& Cubitts (Scotland) Ltd).
It must also be proven that the harm experienced by Claimant was not too remote – i.e. not too far
removed so that Defendant should not be responsible for it. Using the test from The Wagon Mound
(No 1), the damage therefore must be of such a kind that a reasonable person would have foreseen it.
Given [apply facts], it could be argued that the damage [was/wasn’t] reasonably foreseeable and thus
[is/isn’t] too remote. If relevant, also mention:
Under the egg-shell skull rule, Defendant must take their victim as they find them (Robinson
v Post Office) – Claimant can recover in full for their losses even if Defendant couldn't have
foreseen the full extent of such loss.
As the type of injury was foreseeable, it doesn't matter that the precise way in which the
injury happened was not foreseeable (Hughes v Lord Advocate).
DEFENCES
Contributory Negligence
In order to claim contributory negligence, Defendant must establish:
1. Carelessness on Claimant's part; and
2. That carelessness contributed to Claimant's damage.
Under s.1(1) Law Reform (Contributory Negligence) Act 1945, if the partial defence is raised
successfully, the damages recoverable by Claimant will be reduced to such extent as the court thinks
is a just and equitable reflection of Claimant’s share in responsibility for the damage.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Claimant is a Child As Claimant is a child, it must be considered whether an ordinary [age]
child would have taken more care for their safety than Claimant did
(Gough v Thorne). If the negligence of the child’s parents is partly to
blame, the defendant could seek a contribution towards Claimant’s
damages under the Civil Liability (Contribution) Act 1978.
Failure to Wear a (Froom v Butcher) – 25% reduction if injury would have been avoided,
Seatbelt 15% if less severe, 0% if would have made no difference.
Crash Helmet If the defendant can establish a causal link between the lack of any crash
helmet and the claimant’s injuries, the claimant will have their damages
reduced for contributory negligence (Capps v Miller).
Claimant is a For the purpose of contributory negligence, a rescuer will be judged
Rescuer against the standard of the reasonable rescuer. Allowance will be made for
the emergency situation in which many rescuers will find themselves.
Only if a rescuer has shown a ‘wholly unreasonable disregard for his or
TORT OF NEGLIGENCE
INTRODUCTION
Negligence is defined as a breach of legal duty of care owed to the claimant that results in harm to the
claimant, undesired by the defendant. When seeking a claim in the tort of negligence, it is necessary
to prove the following elements:
a) Legal duty of care;
b) Breach of duty;
c) Causation of harm.
The burden of proving each of these elements, and thus whether a defendant has committed the tort,
lies with the claimant. The claimant must prove their case on the balance of probabilities. Here [state
name] is the claimant and has suffered [state injury]; [state name] is the defendant.
DUTY OF CARE
In order to make a claim in negligence against Defendant, Claimant first needs to explore whether
they were owed a duty of care and whether Defendant could be liable for nonfeasance. The general
rule is that there is no liability for omissions (Stovin v Wise), unless there is a special relationship of
control, in which case there will be a duty to act positively to safeguard or prevent harm.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Damage to In Smith v Littlewoods Organisation, there was no duty of care owed:
neighbouring property the defendant had no control over the vandals and no special
by third parties relationship with the claimant.
School/children In Carmarthenshire County Council v Lewis, the school had assumed
responsibility for controlling the child; they owed a duty of care to the
driver that swerved to avoid the child.
Claimant is a rescuer Where a defendant’s actions have created a dangerous situation so that
it is reasonably foreseeable that someone may attempt a rescue, the
defendant owes a duty of care to the rescuer (Baker E Hopkins & Son
Ltd).
Defendant is a rescuer If a person decides to intervene when they do not owe a duty to act, they
will not be liable in negligence unless they positively make matters
worse (East Suffolk Rivers Catchment Board v Kent and another).
Novel duty situation As this is a novel duty situation, the three factors of Caparo test must be
explored:
1) Reasonable foresight of harm to the claimant;
2) Sufficient proximity of relationship between the claimant and
the defendant;
3) That it is fair, just and reasonable to impose a duty.
,BREACH OF DUTY
Defendant will be expected to meet the standard of care of: [state as appropriate]
A reasonable [state profession] (Blyth v Birmingham Waterworks)
A reasonably competent driver, regardless of their level of skill (Nettleship v Weston)
A reasonable person with their particular skill/profession (Bolam v Friern Hospital
Management Committee), even if they are under-skilled (Wilsher v Essex Area Health
Authority)
An ordinary child of the same age (Mullin v Richards)
When assessing the degree of care expected of Defendant, it is also important to consider four key
factors:
(a) magnitude of risk;
(b) practicability of precautions;
(c) purpose of the defendant’s behaviour;
(d) the defendant’s current state of knowledge.
Likelihood of Risk
It may be justifiable not to take steps to eliminate a real risk if the risk of injury is small and a
reasonable person would think it right to neglect it (Bolton v Stone). Apply to facts.
Seriousness of Risk
If the defendant knows that a particular individual runs a risk of suffering greater damage than
normal, this may increase their obligations. Apply to facts.
Cost and Practicability of Precautions
If the risk of injury is slight compared to a substantial cost and inconvenience, the defendant’s
decision may be considered reasonable (Latimer v AEC Ltd). Apply to facts.
Purpose of Defendant’s Behaviour
If human life is at stake/the activity has social utility, a defendant may be justified in taking abnormal
risks (Watt v Hertfordshire County Council). Apply to facts.
Current State of Knowledge
The defendant’s activities must be judged in light of the knowledge available to the defendant at the
time of the event (e.g. current standard of knowledge in the world) – Roe v Ministry of Health. Apply
to facts.
*If unable to prove how the accident took place, consider res ipsa loquitor*
Res ipsa loquitor
The courts may be prepared to draw an inference of negligence against the defendant provided the
following three conditions are met (Scott v London and St Katherine Docks Co):
1) The thing causing the damage must be under the control of the defendant or someone for
whom the defendant is responsible;
2) The accident must be such as would not normally happen without negligence;
3) The cause of the accident must be unknown to the claimant.
, If the above conditions are met, a prima facie inference of negligence will be raised against the
defendant. The defendant must then provide a reasonable explanation of how the damage could
have occurred without negligence, such as evidence of how the damage actually occurred (i.e. this
wasn’t due to negligence on their part) or that they had, at all time, used reasonable care (if they
cannot show how the accident actually happened.
CAUSATION OF HARM
Finally, for Claimant’s claim against Defendant to succeed, it must be proved that they were the
factual and legal causation of their harm. Factual causation can be proved using the ‘but for’ test
(Barnett v Chelsea and Kensington Hospital Management Committee): but for [state breach] would
Claimant have suffered harm? Here… [apply to facts].
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Multiple Causes If there are multiple causes of the damage, it is enough to show the breach
materially contributed to the damage (Bonnington Castings v Wardlaw).
However, if there are several possible alternatives, the claimant may fail to
prove that the defendant’s breach of duty caused the harm on the balance
of probabilities (Wilsher v Essex Area Health Authority).
Mesothelioma In a case of mesothelioma/scientific uncertainty, the claimant must show
(scientific the breach caused a material increase in the risk of injury (Sienkiewicz v
uncertainty) Greif (UK) Ltd). Each defendant will be liable for the whole of the
claimant’s harm, not just to the extent of their contribution to the risk (s.3
Compensation Act 2006).
Divisible Injury In cases of divisible injury (e.g. asbestosis), the court will apportion the
damage accordingly and the claimant will need to sue several defendants
to claim damages in full (Holtby v Brigham and Cowan (Hull) Ltd)
Indivisible Injury In cases of indivisible injury, the claimant is entitled to recover his
damages in full from any defendant. The defendant who may seek a
contribution from the other parties under ss.1(1) and 2(1) Civil Liability
(Contribution) Act 1978.
Subsequent Injuries In cases of multiple injuries, a later defendant causing a subsequent injury
will be liable only to the extent that they make the damage worse
(Performance Cars v Abraham).
Claimant must also prove that the chain of causation was not broken by any intervening acts.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Foreseeable The general rule is that the chain of causation is unlikely to be broken by
Consequence an action which the defendant ought to have foreseen as a likely
consequence of their negligence (e.g. Stansbie v Troman).
Third Party Negligent intervention by a third party will break the chain of causation
Intervention where the defendant could not have reasonably foreseen their intervention
as a likely consequence of their negligence (Knightley v Johns).
, Instinctive Reaction An instinctive reaction by a third party will not break the chain of
causation (Scott v Shepherd).
Medical Negligence Medical negligence will not break the chain of causation unless it is
grossly negligent and a completely inappropriate reaction to the claimant’s
injury (Rahman v Arearose).
Claimant’s Actions If the claimant’s actions are entirely unreasonable in the circumstances,
this is likely to break the chain of causation (McKew v Holland & Hannen
& Cubitts (Scotland) Ltd).
It must also be proven that the harm experienced by Claimant was not too remote – i.e. not too far
removed so that Defendant should not be responsible for it. Using the test from The Wagon Mound
(No 1), the damage therefore must be of such a kind that a reasonable person would have foreseen it.
Given [apply facts], it could be argued that the damage [was/wasn’t] reasonably foreseeable and thus
[is/isn’t] too remote. If relevant, also mention:
Under the egg-shell skull rule, Defendant must take their victim as they find them (Robinson
v Post Office) – Claimant can recover in full for their losses even if Defendant couldn't have
foreseen the full extent of such loss.
As the type of injury was foreseeable, it doesn't matter that the precise way in which the
injury happened was not foreseeable (Hughes v Lord Advocate).
DEFENCES
Contributory Negligence
In order to claim contributory negligence, Defendant must establish:
1. Carelessness on Claimant's part; and
2. That carelessness contributed to Claimant's damage.
Under s.1(1) Law Reform (Contributory Negligence) Act 1945, if the partial defence is raised
successfully, the damages recoverable by Claimant will be reduced to such extent as the court thinks
is a just and equitable reflection of Claimant’s share in responsibility for the damage.
*Consider if any of the below are relevant and, if so, apply to the facts*
Scenario Legal Principle
Claimant is a Child As Claimant is a child, it must be considered whether an ordinary [age]
child would have taken more care for their safety than Claimant did
(Gough v Thorne). If the negligence of the child’s parents is partly to
blame, the defendant could seek a contribution towards Claimant’s
damages under the Civil Liability (Contribution) Act 1978.
Failure to Wear a (Froom v Butcher) – 25% reduction if injury would have been avoided,
Seatbelt 15% if less severe, 0% if would have made no difference.
Crash Helmet If the defendant can establish a causal link between the lack of any crash
helmet and the claimant’s injuries, the claimant will have their damages
reduced for contributory negligence (Capps v Miller).
Claimant is a For the purpose of contributory negligence, a rescuer will be judged
Rescuer against the standard of the reasonable rescuer. Allowance will be made for
the emergency situation in which many rescuers will find themselves.
Only if a rescuer has shown a ‘wholly unreasonable disregard for his or
