What is Negligence?
Negligence occurs when someone causes injury or a loss to someone else because of their reckless or careless behaviour.
In English common law, negligence is a tort (a civil wrong) and a claim in negligence can provide a remedy for personal injury, damage to property and economic loss.
Situations in which negligence can arise could be on the road, at work and through faulty products.
The Modern Form of Negligence
The tort of negligence in its modern form was arrived at in Lord Atkins comments in Donoghue v Stevenson [1932].
He explained that a person must take reasonable care to avoid acts which that person can reasonably foresee would injure other people who are so directly and closely related to those acts that the person should have reasonably contemplated those people would be affected by the acts causing injury.
Elements of the Tort of Negligence
To be able to establish a claim for negligence a claimant must show that:
• The defendant owed the claimant a duty of care;
• The defendant breached that duty of care;
• The defendant's breach caused the claimant to suffer loss; and
• The loss caused by the defendant was not too remote.
Duty of Care
In most cases it will be obvious whether or not a duty of care is owed between claimant and defendant as there are many established duties already decided by the court, such as a duty of a road user to take care towards other road users and parents to take care towards their children. However, case law has developed a test for cases where there is no established duty of care.
It was Lord Atkins comments that established how a duty of care is owed, but a more recent case, Caparo Industries v Dickman [1990], has established the test that is now used:
• The damage that occurs must be foreseeable;
• There is a sufficient proximate relationship between the parties; and
• It is fair, just and reasonable in all the circumstances to impose a duty of care (this was the element added on to the Donoghue v Stevenson test).
Breach of Duty of Care
A person who owes a duty of care will have breached that duty if they fail to exercise reasonable care, which is the care that might be expected by a hypothetical reasonable person.
The claimant only needs to prove that on the balance of probabilities the defendant that owed a duty of care failed to exercise reasonable care.
Causation and loss
The claimant needs to show that the defendant has caused the claimant to suffer loss. A claimant needs to show that there is factual and legal causation for the claim to succeed:
• Factual causation - a claimant must prove that 'but for' the defendant's negligence, the claimant would not have suffered any loss.
• Legal causation - the loss caused must be within the scope of the duty owed by the defendant to the claimant and must be foreseeable.
For more information regarding managing negligence risks or making or defending negligence claims contact will@osmondandosmond.co.uk or c.dunbar@osmondandosmond.co.uk or by telephone on 0207 583 3434.
