Elements of a negligence claim
To succeed in an action for negligence at common law a claimant has to establish that:
- The defendant owed a duty to the claimant.
- The defendant breached the duty owed to the claimant.
- The defendant’s breach of duty caused the claimant to suffer recoverable loss.
Is there a duty of care?
The circumstances in which a duty of care at common law is owed are many and varied. Tests are whether:
- the damage which occurs is foreseeable;
- there is a sufficiently proximate relationship between the parties; and
- it is fair, just and reasonable in all the circumstances to impose a duty of care.
Has there been a breach of duty?
A person who owes a duty to take care at common law will breach that duty if they fail to exercise reasonable care. The standard of care is that of the hypothetical “reasonable man”:
“The person concerned is sometimes described as ‘the man in the street,‘ or ‘the man in the Clapham omnibus,‘ … Such a man taking a ticket to see a cricket match at Lord’s would know quite well that he was not going to be encased in a steel frame which would protect him from the one in a million chance of a cricket ball dropping on his head.” Hall v Brooklands Racing club 1933
The standard of care is purely objective and is not adjusted to take account of the personal characteristics of the defendant.
There are no degrees of negligence. Either reasonable care has been taken or it has not. All a claimant has to prove on the balance of probabilities is that the defendant has not taken reasonable care.
However, the gravity of the consequences of an injury is relevant to the degree of care required. The House of Lords held in one case that the fact a man had only one eye was relevant to the degree of care his employer should have taken to protect his only other eye.
The likelihood of harm is also central to the lengths to which a person should go to prevent harm occurring. In one case the likelihood that a cricket ball would be hit out of the ground and strike a passer-by on the head was relevant to the height to which a cricket club should have constructed a boundary fence.
Has the breach caused the loss?
For a claim to succeed, the claimant must show that the defendant’s negligence caused the claimant to suffer loss.
Causation can be divided into two categories:
- Factual causation.
- Legal causation.
A claimant must show both. Neither of them on their own will be sufficient to establish liability.
Factual causation
A claimant must prove that, but for the defendant’s carelessness, the claimant would not have suffered any loss.
The claimant’s claim will fail if either:
- The claimant would have suffered the same loss even in the absence of the defendant’s negligence.
- The true cause of the claimant’s loss was something other than the defendant’s carelessness.
Where a claimant’s loss was caused by a combination of events and the defendant’s negligence was responsible for only one of those events, the court must decide whether one of the events for which the defendant’s carelessness was not responsible broke the chain of causation between the defendant’s fault and the loss.
A break in the chain of causation will be established where there was a new and independent cause of the loss.
The chain of causation can be broken by an event caused by the claimant or some other third party.
It is not generally sufficient for a claimant to merely prove that a defendant increased the risk that the claimant would sustain the loss they have in fact suffered.
Legal causation
Scope of duty
A claimant must establish that the defendant’s negligence was legally the cause of the claimant’s loss. It is necessary but not sufficient to prove that, but for the defendant’s carelessness, the loss would not have been sustained.
Pure economic loss
There is a general rule that a negligent defendant is not liable for purely economic loss suffered by a claimant.
Foreseeability
Another aspect of legal causation is that the claimant’s loss must have been a foreseeable consequence of the defendant’s breach of duty.
Loss
Basis of awarding damages in negligence claims
A claimant is entitled to an award of damages to put them in the position in which they would have been had the defendant discharged his duty. A claimant must prove, on the balance of probabilities, what he would have done had it not been for the defendant’s breach of duty.
However, where the claimant’s position depends on the hypothetical action of a third party, the claimant can obtain damages based on the lost chance that a third party would have acted differently and placed the claimant in a better position, provided the claimant can persuade a court that there was a substantial chance that he would have been in a better position but for the defendant’s breach of duty. In that scenario, the court will evaluate the loss the claimant has suffered on the basis that the third party would have acted in the manner for which the claimant contends, and then discount the claimant’s damages to reflect the chance that the third party would not have acted in that way.
Mitigation of loss
The victim of negligence who claims damages as a result of that breach of duty is under an obligation to take reasonable steps to mitigate the loss he has suffered. To the extent that a loss has been mitigated or should reasonably have been mitigated, it will not be recoverable.
However, costs reasonably incurred in attempting to mitigate losses (whether those attempts are successful or not) will be recoverable.
