Evaluation of Negligence
- teachlawhub
- 3 days ago
- 5 min read
Updated: 2 days ago
This blog focuses on evaluation of Negligence. A core Tort Law topic. Negligence is a type of civil wrong that allows individuals (claimants) to claim when they have suffered injury, loss or damage due to someone else’s actions or omissions.
To succeed in a negligence claim, a claimant must prove three key elements:
A duty of care was owed by the defendant.
That duty was breached.
The breach caused foreseeable damage.
Duty of Care
A duty of care exists when the law recognises a legal relationship between the claimant and defendant. The modern approach to duty of care was clarified in Robinson v Chief Constable of West Yorkshire Police (2018). The courts now decide duty of care by looking at existing precedents, analogous cases, or, in novel situations, using the incremental approach considering factors from Caparo v Dickman (1990).
Many duty relationships are already well established, such as doctors to patients (Bolam v Frien Hospital Management Committee, 1957), manufacturers to consumers (Donoghue v Stevenson, 1932) and drivers to other road users (Road Traffic Act 1988).
Evaluation of Duty of Care
1. Certainty through established duties
A major strength of the law on duty of care is the large number of clearly established duty relationships. This provides certainty and predictability, allowing individuals and organisations to know in advance when they owe a duty of care. For example, manufacturers are clearly aware that they owe duties to consumers following Donoghue v Stevenson. This certainty supports fairness and efficiency, as courts do not need to repeatedly reconsider well-settled areas of law.
2. Flexibility through analogy and the incremental approach
The use of analogy and the incremental approach allows the law to develop gradually without creating sudden or extreme changes. Confirmed in Robinson, this approach avoids over-reliance on the Caparo test while still allowing new duties to be recognised when appropriate. This makes the law adaptable to modern society and new risks, such as emerging professional relationships, while maintaining judicial caution.
3. Uncertainty in novel situations
Despite its flexibility, the law on duty of care can still be uncertain in novel cases. The “fair, just and reasonable” stage of Caparo is vague and subjective, meaning outcomes can be unpredictable. Different judges may reach different conclusions on what is fair, leading to inconsistency. This can make it difficult for claimants to know whether they will succeed and may undermine confidence in the law.
4. Policy considerations may limit protection Courts sometimes refuse to impose duties due to policy concerns (as in Hill v Chief Constable of West Yorkshire Police, 1989), particularly involving public bodies like the police. While Robinson expanded police liability in some situations, courts still remain cautious. This may leave some claimants without a remedy even when harm is foreseeable. As a result, the law may prioritise public interest over individual justice, which can be criticised as unfair.
Breach of Duty
Once a duty of care has been established, the claimant must prove that the defendant breached that duty. A breach occurs when the defendant’s conduct falls below the standard of the reasonable person (Blyth v Birmingham Waterworks Co.1856).
The courts consider:
The standard of the reasonable person.
The characteristics of the defendant (professional, learner or child).
Risk factors such as size and seriousness of risk, cost of precautions, special characteristics of the victim and social utility.
Evaluation of Breach of Duty
1. Objectivity of the reasonable person test
The reasonable person test provides an objective standard, which promotes fairness and consistency. By comparing defendants to an ordinary reasonable person (or a reasonable professional or child where appropriate), the law avoids making decisions based on personal opinions. This objectivity helps ensure similar cases are treated similarly, which is essential for justice.
2. Fair adjustment for characteristics
The law’s recognition of different defendant characteristics is a key strength. Judging professionals by the standards of reasonably competent members of their profession (Bolam test), children by the standard of a reasonable child of the same age (Mullins v Richards), and learners as a reasonable qualified person (Nettleship v Weston) balances fairness with public protection. This ensures vulnerable claimants are not disadvantaged simply because the defendant lacks experience.
3. Harshness of the learner rule on defendants
A further criticism is the harsh treatment of learners and trainees. In Nettleship v Weston, the court held that a learner driver should be judged against the standard of a reasonably competent qualified driver, not a reasonable learner. While this rule prioritises public safety and protects claimants, it can be seen as unfair to inexperienced defendants who lack the skills and judgment of qualified professionals. This suggests that the law places the burden of risk on learners, which may discourage training and seems inconsistent with the more lenient approach taken towards children.
4. Risk factor balancing can be inconsistent
Balancing risk factors such as seriousness of harm (Bolton v Stone) and social utility (Watt v Hertfordshire CC) can lead to uncertainty. What counts as “reasonable precautions” or sufficient social utility is subjective, and outcomes may vary between cases. This flexibility can reduce predictability and make exam answers, and real cases, harder to apply consistently.
Damage and Causation Even after duty and breach are established, the claimant must still prove that the defendant’s breach caused the damage suffered. This is assessed through the rules of causation, which limit liability in negligence:
Factual causation: The courts apply the but for test to ask whether the damage would have occurred but for the defendant’s breach (Barnett v Chelsea, 1969).
Remoteness of damage: The defendant is only liable for damage that is a reasonably foreseeable result of the breach and not too remote (The Wagon Mound, 1961).
Type of harm: It is the type of harm that must be foreseeable, not the exact extent (Hughes v Lord Advocate, 1963).
Intervening acts: Liability may be broken by a novus actus interveniens, such as an unforeseeable act of a third party, the claimant or act of nature.
Egg shell skull rule: Defendants must take claimants as they find them and are liable for the full extent of harm caused, even where the claimant is unusually vulnerable (Smith v Leech Brain, 1962).
Evaluation of Damage and Causation
1. Logical structure of the but for test
The but for test provides a clear and logical method for determining factual causation. It ensures defendants are only held liable when their breach actually caused the damage. This prevents unfair liability and supports the principle that negligence should only compensate genuine loss.
2. Fairness of the egg shell skull rule
The egg shell skull rule strongly protects claimants by ensuring defendants remain fully liable even if harm is more severe due to a pre-existing condition. This demonstrates moral responsibility, as defendants must take claimants as they find them, promoting fairness and reinforces the idea that wrongdoers should bear the risk of the harm they cause, rather than vulnerable claimants being under-compensated.
3. Harsh outcomes for claimants under factual causation
The but for test can be too strict in some cases, leading to unfair results. In Barnett, the claimant failed despite clear negligence because the harm would have occurred anyway. This can feel unjust, as defendants may escape liability even where they acted negligently.
4. Foreseeability limits compensation
The test for remoteness restricts claims to foreseeable types of harm, which can limit compensation for unusual consequences reflecting the moral principle that defendants should only be responsible for harm they could anticipate. While this protects defendants from unlimited liability, it may leave claimants uncompensated for real losses. This highlights tension between fairness to defendants and justice for claimants.
Conclusion Overall, the law on negligence is a well-structured and balanced system that aims to fairly allocate responsibility for harm. The rules on duty, breach and damage provide clarity, flexibility and protection for both claimants and defendants. However, the law is not without weaknesses, particularly in relation to uncertainty, policy limitations and strict causation rules.
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