3.3 - Negligence breach, damage and causation

Scope And Liability Sequence

Negligence is not proved just because someone is hurt. In a physical injury or property damage claim, the claimant normally needs to show:

For AQA, this topic sits in Paper 2 Tort under liability in negligence for physical injury to people and damage to property. It is not the lesson for pure economic loss, psychiatric injury control mechanisms, occupiers' liability, nuisance, Rylands v Fletcher, vicarious liability or detailed damages calculation. Those topics can connect to negligence, but this lesson should stay focused on breach, damage and causation.

When the duty is an established duty situation, such as one road user to another, do not spend most of the answer re-fighting Caparo. AQA examiner material credits concise use of established duty reasoning, including the approach in Robinson v Chief Constable of West Yorkshire. Once duty is established or assumed, the marks often come from the harder work: identifying the correct standard, applying breach factors, and proving the recoverable damage.

The issue order matters. Breach asks whether the defendant's conduct was legally careless. Causation asks whether that careless conduct caused the claimant's loss. Remoteness asks whether the law will treat that kind of loss as recoverable. A common weak answer collapses all three into "the defendant caused an accident"; a strong answer keeps each legal question separate.

Objective Standard Of Care

Once duty is established, the next question is breach.

The test is objective. The court does not simply ask whether this defendant personally tried their best, panicked, lacked experience or meant well. It asks what a legally reasonable person, driver, professional, child or emergency actor would have done in the circumstances.

The objective standard is the category. The breach factors then decide whether the defendant's conduct fell below that standard. Keep those two steps distinct:

1. Identify the comparator: reasonable driver, reasonable competent professional, reasonable child of that age, reasonable occupier, reasonable emergency responder and so on.
2. Apply the risk factors: likelihood of harm, seriousness of possible harm, practicality of precautions and social utility.
3. Reach a calibrated conclusion: clearly breached, probably breached, borderline, or probably not breached.

Nettleship v Weston is the key AQA-level authority for inexperience. A learner driver was judged by the standard of the competent driver, not the lower standard of a beginner. The legal point is victim protection and certainty: other road users should not bear a lower level of protection because the defendant is new to the activity. In an application paragraph, this case helps when a defendant says they were inexperienced with a vehicle or equipment.

Professionals are not judged as ordinary laypeople. Bolam v Friern Hospital Management Committee supports the idea that a professional is judged by the standard of a reasonably competent professional in that field. This does not make professionals automatically liable for every bad outcome. It asks whether the defendant's conduct was acceptable by professional standards. In a problem question, identify the profession first: a doctor, solicitor, surveyor, electrician or other skilled defendant should be compared with the reasonable competent person professing that skill.

Children may be treated differently. Mullin v Richards is commonly used for the point that a child defendant is judged by reference to a reasonable child of the same age, not always by the full adult standard. This matters because the objective test is still objective, but the comparator may change. A 15-year-old playing carelessly is not automatically judged exactly like a trained adult.

The same logic applies to role-specific defendants. A driver of an ambulance, fire engine or rescue vehicle is still judged objectively, but the standard may reflect the activity being performed. AQA materials use examples such as emergency driving to show that social benefit can be relevant when deciding breach. The defendant is not immune because the activity is useful; usefulness is one factor in the breach balance.

Common confusion: do not treat the claimant's hidden vulnerability as part of breach unless the defendant knew or ought to have known about it. If the defendant knows the claimant is especially vulnerable, that may increase the seriousness of risk at the breach stage. If the vulnerability is unknown and only affects the extent of injury after the accident, it is usually a causation/remoteness point, especially the thin skull rule.

Breach Risk Factors

After choosing the objective standard, decide whether the defendant fell below it. AQA mark schemes repeatedly refer to risk factors in breach: seriousness of risk, likelihood of risk and ease of prevention. Social utility may also matter. The court weighs the risk against the burden of taking precautions.

These factors are not separate elements that must all point the same way. They are a structured balance. A small risk may still require action if the possible harm is extremely serious and the precaution is simple. A serious risk may be tolerated where the defendant has already taken reasonable precautions or where urgent public benefit justifies a carefully managed risk.

Apply each factor to facts, not labels. "The risk was high" is not enough. Say why. For example:

• likelihood: the floor was wet in a busy doorway where people had already slipped
• seriousness: a fall on concrete could cause broken bones or head injury
• precautions: a warning sign and temporary barrier were cheap, quick and available
• social utility: keeping a hospital entrance open may matter, but it does not excuse ignoring an obvious hazard

Paris v Stepney BC is often confused with the thin skull rule. Paris is a breach case because the defendant knew about the claimant's vulnerability before the accident, so the seriousness of the risk was greater. Thin skull cases are different: they deal with the extent of damage after breach and causation are already proved.

Use authority as a tool, not as decoration. A strong AQA sentence might say: "This resembles Latimer because the defendant took some precautions, but unlike Latimer the remaining precaution was cheap and obvious, so a court is more likely to find breach." That is better than listing three case names and hoping one fits.

Damage And Factual Causation

Negligence requires actionable damage. In this lesson, the relevant damage is physical injury to people and damage to property. A broken arm, burn, concussion, damaged bicycle, smashed phone or damaged building can be actionable. A claim for pure economic loss or psychiatric injury involves additional rules taught in separate lessons.

Once damage is identified, factual causation asks whether the damage would have happened but for the defendant's breach. The usual question is:

But for the defendant falling below the standard of care, would the claimant have suffered this damage?

If the answer is "no, the damage would not have happened", factual causation is normally satisfied. If the answer is "yes, the damage would have happened anyway", factual causation fails even though the defendant may have behaved badly.

Barnett v Chelsea and Kensington Hospital Management Committee is the standard illustration. A hospital negligently failed to examine a patient, but the evidence showed he would have died anyway from poisoning even with proper care. The defendant was negligent, but the breach did not factually cause the death. The legal tool is simple: bad conduct plus harm is not enough; the breach must make a difference to the outcome.

In problem questions, write causation at the correct level of specificity. Do not ask only "did the defendant cause an accident?" Ask whether the breach caused the actual damage claimed. If a careless driver hits a cyclist, factual causation for a broken leg may be clear. If the cyclist later loses earnings because an unrelated business closes, that later loss needs separate causal analysis.

The claimant must also match each item of loss to the legal route: