legalEASE.
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:
Damage to a claimant (C).
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.
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.
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.
Defences and quantification of damages.
Concept: | Test/Requirements: | Other considerations: |
|---|---|---|
Novel duties: | Caparo v Dickman:
| 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: |
| |
Causation in fact: | But for test:
| This is a simple summary of causation in fact. Other things can make it more complex e.g:
|
Legal causation: | Common examples:
| These can be the acts of C, third parties, or natural events. |
Remoteness: | Wagon Mound (No 1):
| Conditions of rule: Similar in type rule – it only matters if the type of injury was foreseeable not the |