The Three Elements of Negligence

To win a negligence case, you need to prove three essential things happened. Think of them as three boxes you must tick - duty of care, breach of that duty, and damage caused by the breach.

The duty of care concept started with the famous case Donoghue v Stevenson, which created the 'neighbour test'. This basically asked: do you owe care to people who might be directly affected by your actions? However, this test felt a bit vague, so courts now use the more structured Caparo test instead.

The Caparo test has three stages that judges work through systematically. First, was the damage reasonably foreseeable? Second, is there proximity (closeness) between the claimant and defendant? Third, is it fair, just and reasonable to impose a duty of care? Cases like Kent, Bournhill, and Hill established these principles respectively.

Quick Tip: If there's already an established duty of care $like doctor-patient$, you can skip the Caparo test entirely - it's already been decided by previous cases.

For breach of duty, courts look at whether the defendant's behaviour fell below the standard of a reasonable person. The standard changes depending on who you are - professionals are judged by the Bolam test (compared to competent colleagues), learners are held to qualified standards (Nettleship), whilst children are judged against other reasonable children their age (Orchard).

Risk factors also matter when deciding if there's been a breach. Courts consider special characteristics of the claimant, the size of the risk, and whether adequate precautions were taken. For example, in Bolton, the low risk meant no breach occurred.

Finally, causation has two parts. Factual causation uses the 'but for' test - but for the defendant's actions, would the harm have occurred? Legal causation asks whether the damage was too remote, following the Wagon Mound principle that the type of injury must be foreseeable. Remember the 'eggshell skull rule' - you take your victim as you find them, including any pre-existing conditions.