H418/02 - Negligence and duty of care

The elements of negligence

Negligence is a tort addressing legally actionable harm caused by a failure to take reasonable care. The claimant must establish a duty of care owed by the defendant, breach of that duty, and damage caused by the breach which the law treats as recoverable. Possible defences can then prevent or reduce recovery. A duty of care is a legal obligation to take reasonable care for a protected person or interest, not merely a general moral hope that everyone behaves kindly.

Keep the questions separate:

Original example: a driver looking at a phone strikes a pedestrian and breaks their arm. Driver and pedestrian fall within an established road-user duty. Looking away supports breach, but the evidence must still link that breach to the collision and injury. If the pedestrian instead suffered an unrelated pre-existing injury, the driver's carelessness would not establish responsibility for that injury. If a careful driver could not avoid the collision, a duty alone would not establish breach.

Physical injury and damage to property are the focus here. A cracked bicycle frame is property damage; an injured arm is personal injury. Pure economic loss, psychiatric injury and specialist product-liability rules raise separate questions. The question here is first whether there is a potential recognised action, then whether all its elements are proved.

Donoghue and legal neighbours

Donoghue v Stevenson (1932) developed the duty owed by a manufacturer to an ultimate consumer. Mrs Donoghue alleged illness after consuming ginger beer bought for her by a friend, with decomposed snail remains found in an opaque bottle. She had no purchase contract with the manufacturer. The House of Lords held that the pleaded facts could support a negligence duty; it did not determine at that stage that the snail allegation had been proved or finally award damages after a factual trial. The judgment is important for its legal principle, rather than as proof of every alleged fact.

Lord Atkin's neighbour principle required reasonable care to avoid acts or omissions reasonably foreseeable as likely to injure those closely and directly affected by one's conduct. A legal “neighbour” is such an affected person whom the defendant ought reasonably to contemplate, not necessarily the person living next door. Foreseeability concerns a reasonable prediction of harm, not knowledge of the claimant's name.

The decision showed why contractual separation need not leave an ultimate consumer without a tort duty. It also offered a broader idea for developing negligence: think about the defendant's conduct, the people foreseeably affected and the closeness of the relationship. That idea must be used with later precedent rather than treated as a universal duty to prevent every foreseeable misfortune.

Original analogy: a driver manoeuvring a vehicle beside pedestrians should contemplate injury to people in its path, even without an agreement with them. Counterexample: a stranger seeing a distant person in trouble does not automatically acquire a negligence duty simply because rescue would be morally admirable. Duties to protect against harm caused by others require a recognised legal basis, rather than foreseeability alone.

Caparo and established duties

Caparo Industries v Dickman (1990) identified three familiar duty considerations: reasonable foreseeability of damage, a relationship of proximity, and whether imposing a duty of the proposed scope would be fair, just and reasonable. Proximity is legally relevant closeness, not merely distance in metres. The proposed duty's scope matters: responsibility to take care for one purpose does not necessarily extend to every person and use.