Negligence: Overview

What is negligence?

Tort defined as the breach of a duty of care recognised by law.

How does negligence differ from other torts? (2)

• Other torts protect specific interests or regulate specific conduct.

• Negligence focuses on whether a duty of care exists and whether it was breached.

Why is negligence described as a “residual tort”?

It developed to protect interests left unprotected by existing torts that were too limited or rigid to expand.

Why is Donoghue v Stevenson significant? (2)

1. Established the modern tort of negligence.

2. Provided a remedy where neither tort nor contract previously allowed recovery due to lack of privity.

What are the 4 elements required to establish negligence?

1. Duty of care — D must have owed a duty of care to C.

2. Breach of duty — D failed to exercise reasonable care or the required standard of care.

3. Causation — Breach must have caused the C’s injury or damage.

4. Remoteness — Damage must not be too remote.

Is there a general duty to always act carefully toward others?

NO — only where recognised by law, especially where positive action is required.

What is the first step in identifying a duty of care? (2)

1. Ask whether there is an existing precedent with similar facts recognising a duty.

2. If an established precedent applies, a recognised duty of care exists and should apply to the present facts.

Duty of Care: What was held in Nettleship v Weston?

Motorists owe passengers a duty not to cause harm.

Duty of Care: What was held in Donoghue v Stevenson?

Manufacturers owe consumers a duty not to cause bodily harm to ultimate consumers.

Duty of Care: What was held in Bolam?

During treatment, medical professionals owe a duty not to cause harm.

Duty of Care: What was held in Montgomery?

Medical professionals owe a duty to warn patients of material treatment risks.

What was held in Robinson?

During pursuits, police officers owe pedestrians a duty not to cause harm.

Is liability generally imposed for omissions?

NO — Liability generally arises for acts, not omissions, UNLESS a recognised exception applies.

What types of damage are generally actionable in negligence?

Physical injury or physical damage to the claimant’s property.

Is pure economic loss recoverable?

NO — unless there is an assumption of responsibility.

Is emotional distress recoverable in negligence?

NO

When is psychiatric damage recoverable?

Only when strict legal requirements are met.

Are public authorities subject to the same duties of care as private individuals?

NO — Special principles may shield public authorities from duties that would apply to private persons.

Have courts attempted to create general duty of care tests?

Yes, but the modern approach favours incremental reasoning.

What are the 3 limbs of the Caparo test?

1. Reasonable foreseeability of damage

2. Proximity of relationship

3. Fair, just and reasonable to impose a duty

Did Caparo establish a universal test for duty of care?

NO — Lord Bridge emphasised that no single general principle can apply to every case.

What approach did Caparo actually support?

An incremental approach based on recognised categories of duty.

What is the incremental approach?

Reasoning by analogy from established duties of care.

Which case confirmed the incremental approach as correct?

Robinson — confirmed the incremental approach as correct test

When is it unnecessary to apply the Caparo test?

When a case falls squarely within an established duty of care (Darnley)

Can policy considerations be used in novel cases?

YES, to supplement incremental reasoning (James-Bowen v Commissioner of the Metropolis).

What does the Anns test state?

A prima facie duty arises where there is proximity and foreseeable damage, unless policy considerations negate or limit the duty.

Why has the Anns test been rejected?

It places a virtually insurmountable burden on Ds to rebut duty using policy reasons.

What is the Neighbour Test?

A duty of care is owed to persons closely and directly affected by one’s acts whom one ought reasonably to have in contemplation.

What are the 2 key requirements of the Neighbour Test?

2. Proximity

2. Reasonable foreseeability