Negligence AO1
INTRO - Negligence is classified under tort law. ‘Tort’ is used to describe breaches of civil
law as, in French, it means ‘wrong’. The burden of proof is on the claimant to prove the
defendant has been negligent. The standard of proof is ‘on the balance of probabilities’
meaning whichever side is more likely to be true.
In order for negligence to occur, three elements must be present - duty of care, breach of
duty and damage as well as causation and foreseeability.
A duty of care is established when there is a link between the claimant and defendant that
imposes a legal obligation to act carefully. The traditional way of deciding if a duty of care
was owed was through the neighbour principle (Donoghue v Stevenson). Lord Atkin
states that individuals have a duty of care to take reasonable precaution to ensure their act
or omission does not harm their neighbour (someone so closely affected by their actions).
This was updated in Caparo v Dickman which established a new 3-part test to establish if
there is a relationship between C and D and therefore if D owed C a duty of care. This test
only needs to be carried out if the relationship is not already established. Caparo test - the
damage must be reasonably foreseeable (Kent v Griffiths) meaning the reasonable,
ordinary person would suspect the damage to occur, there must be sufficient proximity,
either through relationship (McLoughlin v O’Brian) or physical connection (Donoghue v
Stevenson) between C and D (Bourhill v Young), and it must be fair, just and reasonable
to impose a duty (Hill v Chief Constable of West Yorkshire Police). This is where the
judge will make a policy decision to decide if imposing a duty is fair or if it would open the
floodgates and allow far too many claims. If these 3 steps are satisfied then a relationship is
established and a duty is owed.
The second step to negligence is there must be a breach of the previously established duty.
There is a breach if D has fallen below the general standard expected of another person in
their position. For example, if D is a doctor, D is not expected to be a perfect doctor but just
that of an average, decent doctor. The general standard of care was outlined in
Nettleship v Weston. This case stated that learner drivers are expected to perform to the
standard of any other reasonable road user. The standard of care can however vary based
on several factors: D’s age - where a child is not expected to reach the standard of an adult
and only that of a reasonable ordinary child of the same age (Mullins v Richards), D’s
profession - as mentioned, a doctor is only expected to perform to the standard of another
reasonable doctor not an amazing doctor (Bolam v Friern Hospital), Characteristics of the
claimant - where C is more susceptible then the D will owe a higher standard of care and
must take more severe precautions (Paris v Stepney Borough Council), the magnitude of the
risk - if it is unlikely that harm will occur then the act won’t be considered negligent
(Bolton v Stone), the defendant has taken reasonable precautions - D will not be negligent
if they took reasonable steps to prevent harm (Latimer v AEC Ltd), and finally, the
benefits of the risk - where the benefit outweighs the risk (Watt v Hertfordshire County
Council).
The final step of proving negligence is damage. There must be a form of damage, whether it
is to property or in the form of personal injury, and it must be due to the breaching of the duty
of care. All 3 steps must be satisfied. The court must establish that the breach caused the
damage. They do this using the ‘but for’ test. This test aims to prove whether the damage
INTRO - Negligence is classified under tort law. ‘Tort’ is used to describe breaches of civil
law as, in French, it means ‘wrong’. The burden of proof is on the claimant to prove the
defendant has been negligent. The standard of proof is ‘on the balance of probabilities’
meaning whichever side is more likely to be true.
In order for negligence to occur, three elements must be present - duty of care, breach of
duty and damage as well as causation and foreseeability.
A duty of care is established when there is a link between the claimant and defendant that
imposes a legal obligation to act carefully. The traditional way of deciding if a duty of care
was owed was through the neighbour principle (Donoghue v Stevenson). Lord Atkin
states that individuals have a duty of care to take reasonable precaution to ensure their act
or omission does not harm their neighbour (someone so closely affected by their actions).
This was updated in Caparo v Dickman which established a new 3-part test to establish if
there is a relationship between C and D and therefore if D owed C a duty of care. This test
only needs to be carried out if the relationship is not already established. Caparo test - the
damage must be reasonably foreseeable (Kent v Griffiths) meaning the reasonable,
ordinary person would suspect the damage to occur, there must be sufficient proximity,
either through relationship (McLoughlin v O’Brian) or physical connection (Donoghue v
Stevenson) between C and D (Bourhill v Young), and it must be fair, just and reasonable
to impose a duty (Hill v Chief Constable of West Yorkshire Police). This is where the
judge will make a policy decision to decide if imposing a duty is fair or if it would open the
floodgates and allow far too many claims. If these 3 steps are satisfied then a relationship is
established and a duty is owed.
The second step to negligence is there must be a breach of the previously established duty.
There is a breach if D has fallen below the general standard expected of another person in
their position. For example, if D is a doctor, D is not expected to be a perfect doctor but just
that of an average, decent doctor. The general standard of care was outlined in
Nettleship v Weston. This case stated that learner drivers are expected to perform to the
standard of any other reasonable road user. The standard of care can however vary based
on several factors: D’s age - where a child is not expected to reach the standard of an adult
and only that of a reasonable ordinary child of the same age (Mullins v Richards), D’s
profession - as mentioned, a doctor is only expected to perform to the standard of another
reasonable doctor not an amazing doctor (Bolam v Friern Hospital), Characteristics of the
claimant - where C is more susceptible then the D will owe a higher standard of care and
must take more severe precautions (Paris v Stepney Borough Council), the magnitude of the
risk - if it is unlikely that harm will occur then the act won’t be considered negligent
(Bolton v Stone), the defendant has taken reasonable precautions - D will not be negligent
if they took reasonable steps to prevent harm (Latimer v AEC Ltd), and finally, the
benefits of the risk - where the benefit outweighs the risk (Watt v Hertfordshire County
Council).
The final step of proving negligence is damage. There must be a form of damage, whether it
is to property or in the form of personal injury, and it must be due to the breaching of the duty
of care. All 3 steps must be satisfied. The court must establish that the breach caused the
damage. They do this using the ‘but for’ test. This test aims to prove whether the damage
