Basics of the Law of Negligence

The law of negligence is one of the easiest and yet hardest things for a law student to wrap their head around. The concepts are simple, but it is that simplicity that can make it hard to get high marks. This post is designed to help you understand the basics so you can build on them as you go.

Steps of a negligence case:

1. Damage to a claimant (C).

2. Duty of care:

   - A duty of care is a legal obligation to take reasonable care. These can be established or novel.

   - One of the most common examples of an established duty is driver to road user.

   -  Novel duties can arise but the Caparo test has to be met – this is explained below.

   - Omissions (failure to act) can also be actionable but will be dealt with in a separate post.

3. Breach of that duty:

   - Negligence is a failure to do something a reasonable person would do.

   - This is objective – therefore, the focus is not on the personal attributes of the defendant (D).

   - Sometimes a special standard is applied. This will also be dealt in a later post especially focusing on medical negligence.

4. Legal and factual causation:

   - Can the damage be linked to the breach.

   - Is there any act/event which breaks that link (intervening events).

   - Was the damage too remote.

5. Defences and quantification of damages.

   
   
   
   

Concept:	Test/Requirements:	Other considerations:
Novel duties:	Caparo v Dickman: Was the damage reasonably foreseeable. Was there a relationship of proximity between the parties. Is it just, fair, and reasonable to impose a duty.	Has there been a positive act or an omission. What type of D are you dealing with – a child, a vulnerable person etc…
Breach of duty:	Likeliness and seriousness. On C to prove a breach.
Causation in fact:	But for test: Was the D’s breach in fact a cause of C's damage. Has to be more likely than not (balance of probabilities).	This  is a simple summary of causation in fact. Other things can make it more complex e.g: Material contributions. Material increases in risk for mesothelioma cases. Multiple injuries and multiple Ds. Indivisible injuries.
Legal causation:	Common examples: Instinctive acts unlikely to break link. Unforeseeable negligent acts likely to break link. Reckless/intentional acts likely to break link.	These can be the acts of C, third parties, or natural events.
Remoteness:	Wagon Mound (No 1): Was the damage foreseeable by reasonable person.	Conditions of rule: Similar in type rule – it only matters if the type of injury was foreseeable not the