Introduction
Negligence is a tort which provides a remedy for individuals who have suffered loss or damage due to the unreasonable actions, or inaction, of another person. It is not concerned with intentional harm, but rather a failure to take proper care. For a claimant to succeed in a negligence claim, they must establish three key elements: that the defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused the claimant to suffer damage. This essay will explain these elements with reference to case law and will then discuss the main defences a defendant can raise against a negligence claim.
The Elements of Negligence
The first element a claimant must prove is that the defendant owed them a duty of care. The foundational principle for establishing a duty of care was set out by Lord Atkin in the landmark case of Donoghue v Stevenson (1932). He introduced the ‘neighbour principle’, stating that one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. A neighbour is defined as someone so closely and directly affected by the act that one ought reasonably to have them in contemplation. This principle established that manufacturers owe a duty of care to the final consumers of their products. The modern test for establishing a duty of care was later developed in Caparo Industries plc v Dickman (1990), which requires the claimant to show that the harm was reasonably foreseeable, that there was a relationship of proximity between the claimant and defendant, and that it is fair, just, and reasonable to impose a duty.
Secondly, the claimant must show that the defendant breached the duty of care. The standard for judging a breach is objective; the defendant’s conduct is compared to that of a ‘reasonable person’ in the same situation (Blyth v Birmingham Waterworks Co, 1856). If the defendant has fallen below the standard of care expected of this hypothetical reasonable person, they are in breach of their duty.
Finally, the claimant must prove that the defendant’s breach caused the damage they have suffered. This involves two aspects: factual causation and legal causation. Factual causation uses the ‘but for’ test: but for the defendant’s breach, would the claimant have suffered the harm? In Barnett v Chelsea & Kensington Hospital Management Committee (1969), a man died after a doctor failed to examine him, but it was found he would have died anyway, so the ‘but for’ test failed. Legal causation, or remoteness, means the damage must not be too remote a consequence of the breach. The damage must be of a type that was reasonably foreseeable (The Wagon Mound (No. 1), 1961).
Defences to a Negligence Claim
Even if a claimant can prove all three elements of negligence, a defendant may still avoid or reduce their liability by raising a defence. One of the most common defences is contributory negligence. This is a partial defence, established under the Law Reform (Contributory Negligence) Act 1945, which argues that the claimant’s own negligence contributed to the harm they suffered. If successful, the court will reduce the claimant’s damages to reflect their share of the blame. For example, in Froom v Butcher (1976), damages were reduced because the claimant was not wearing a seatbelt, which worsened his injuries in a car crash caused by the defendant.
A second defence is volenti non fit injuria, which translates to “to a willing person, no injury is done”. This is a complete defence, meaning that if it is successfully argued, the claimant receives no damages. The defendant must prove that the claimant had full knowledge of the nature and extent of the risk and voluntarily agreed to accept that risk. It is difficult to prove, but an example is found in Morris v Murray (1991), where the claimant accepted a lift in a light aircraft from a pilot he knew to be heavily intoxicated and was held to have accepted the risk.
Finally, the defence of ex turpi causa non oritur actio, or illegality, may be available. This public policy defence states that a claimant cannot pursue a claim if it arises from their own illegal act. In Gray v Thames Trains Ltd (2009), the claimant developed PTSD due to the defendant’s negligence and subsequently killed someone. He could not claim for losses resulting from his imprisonment, as this was a consequence of his own criminal act.
Conclusion
In summary, the tort of negligence is a key area of civil law that requires a claimant to demonstrate a duty of care, a breach of that duty, and resulting damage. The principles established in cases like Donoghue v Stevenson continue to shape the law in this area. However, a defendant is not without recourse. Through the defences of contributory negligence, volenti non fit injuria, and illegality, liability can be reduced or completely avoided, ensuring that the final outcome is a fair reflection of both parties’ conduct.
References
- Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
- Blyth v Birmingham Waterworks Co (1856) 11 Exch 781.
- Caparo Industries plc v Dickman [1990] 2 AC 605.
- Donoghue v Stevenson [1932] AC 562.
- Froom v Butcher [1976] QB 286.
- Gray v Thames Trains Ltd [2009] UKHL 33.
- Law Reform (Contributory Negligence) Act 1945.
- Morris v Murray [1991] 2 QB 6.
- Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No. 1)) [1961] AC 388.
