Negligence Tort: Protection Against Negligent Conduct

Negligence from a legal perspective can be defined as failing to exercise care that a normal person would in normal circumstances. Tort law recognizes negligence to involve causation of harm by carelessness or rather causing non-intentional harm.

The fundamental idea on negligence is found in the decision delivered in the case of Fletcher v Rylands ([166] LR 1 Ex 265). It stipulated that a person is expected under law to exercise care that is reasonable in their actions by anticipating any potential harm that can reasonably foreseen.

In determining negligence cases, the courts have through time analyzed the cases in stages. These stages are referred to as elements. An important point to note is that, a plaintiff is under obligation to prove all the elements. Should he fail on one element, then he will not succeed in claiming the entire tort.

Elements of Negligence

There are five negligence claims elements.

a). Duty of Care

This element of negligence is rooted in the decision made in the case of Donoghue v Stevenson [1932] AC 532. Before this case, the existence of the privity doctrine made it impossible to sue manufactures because there existed no contract between manufacturers and consumers. But Lord MacMillan rectified this by defining a brand new category of tort referred to as ‘products liability’ and hence the ‘implied fitness of a product warranty’. This set the pioneering negligence principle of preventing harm that can be foreseeable.  This position has also been supported by the case of Capato v Dickman [1990] 1 All ER 568.

b). Breach of Duty

After the first element has been proved, i.e. that the defendant actually owed the plaintiff a duty, the court has got to rule whether the defendant breached this duty. In discerning, this, the test applied is both objective and subjective. If a defendant by his knowledge [which is the subjective test] causes or exposes the plaintiff to harm, and hence exposes the plaintiff to some risk, then he has breached this duty. When a defendant fails to anticipate a risk which a reasonable person would, that may be suffered by the plaintiff [which is the objective test], then he breaches the duty of care. This has been seen in the case of Bolton v Stone [1951] A.C. 850 as well as Roe v Minister of Health (1954) 2 AER 131.

c). Factual Causation

For a defendant to be liable, the plaintiff has got to show that the omissions and acts caused the sustained damages. This is a very complicated issue and may not be simple as it sounds. The court has got to discern whether the injury suffered by the plaintiff could actually have occurred but for, or even without the defendant’s breach of duty of care that he owed the plaintiff. Moreover, the breaching party may increase harm to the other party. In such an occurrence, the breaching party will be sued equivalently to the harm caused.

d). Legal Causation [remoteness]

Legal causation and factual causation have got to be distinguished to avoid defendants being subjected to liability of an indeterminate amount for a period that is indeterminate to a class that is also indeterminate. The main idea behind legal causation is that if a person cannot reasonably foresee something happening, then they should not be held responsible for any harm done as seen in the case of Palsgraf v Long Rail Road Co. (1928) 162 N.E. 99.

e). Harm

The plaintiff cannot fully recover if he actually cannot prove that he has been caused pecuniary injuries as a result of the defendant’s actions or breach of duty of care. The plaintiff has to show that he has actually suffered loss as a result of the defendant’s actions.


Once a plaintiff has successfully proved all the elements of negligence, then they can be remedied. The remedy is always in form of damages, which is a monetary value that is equated to the harm that a person suffered. Once a breach has been established, the courts try to make sure that the plaintiff is compensated. Compensation in damages takes various forms, a plaintiff may either get special damages, general damages or punitive damages depending on what the court deems fit as punishment for the defendant’s breach of duty of care.    



Bolton v Stone [1951] A.C. 850

Capato v Dickman [1990] 1 All ER 568

Donoghue v Stevenson [1932] AC 532

Fletcher v Rylands ([166] LR 1 Ex 265)

Palsgraf v Long Rail Road Co. (1928) 162 N.E. 99

Roe v Minister of Health (1954) 2 AER 131