How to establish a claim in negligence

What is a claim in negligence?

A claim in negligence is a claim in tort. Other recognised torts include claims that will protect a particular interest of the claimant. These will include things like an assault or battery which will protect bodily integrity, Defamation which will protect a person’s reputation and nuisance which will protect a persons enjoyment over a piece of land.   

Negligence is capable of providing a remedy for three types of harm. These include personal injury, damage to a property and economic loss.

How to establish a claim in negligence?

In order to succeed in establishing a claim in negligence , the claimant has to satisfy the following requirements: 

  • That the Defendant owed a duty of care
  • The defendant breached that duty of care
  • The breach of the duty of care by the defendant caused the damage the claimant has suffered
  • And that the damaged caused was not to remote 

If a claimant successfully fulfils all the above requirements, then he will have a valid claim in the tort of negligence. On the application of a claim in negligence the defence team will inevitable try to establish a defence available to the claimant to avoid the award of any remedies.

The development of a general duty of care

There has been numerous cases decided by the courts that have provided various interpretations and decisions on whether there should be a general duty of care owed by all.  

In the case of Donoghue v Stevens 1932, Lord Atkin stated that; 

‘You must take reasonable care to avoid acts or omissions which you can reasonable forsee would be likely to injure your neighbour’. 

This is the establishment of a general duty of care

Who is my neighbour?

The courts furthered their decision and stated the following; 

A neighbour is anyone who ‘are so closely and directly affected by my act that i ought to reasonably have them in my contemplation as being so affected when i am directing my mind to the acts or omissions that are called into question’. 

This definition is so broad it could basically be used to cover anyone you know well enough to think that they could be affected by your actions or failure to act when doing so.

The reasonable foresight of harm

The reasonable foresight of harm is where you are responsible for your carelessness upon people is likely to be harmed by such carelessness. 

The courts will not ask if the person in question foresaw the harm suffered by his careless actions but will ask would a reasonable person foresee the risk of his carelessness causing harm to a person. 

The person who suffers the harm does not necessarily have to be identifiable for the defendant to foresee the harm. 

It is enough to show that the claimant is part of a group of people who could possible suffer some kind of harm from the careless actions.

How to prove a duty of care has occurred?

There is a two stage test to establish whether a person owed someone else a specific duty of care.

Stage One

Is there a special relationship of proximity between the person causing the risk and the person suffering the harm that would make it reasonable for the wrongdoer to realise his actions or omissions were careless and likely to cause some form of damage? 

If this stage is satisfied then a duty of care is established.

Stage two

If stage one is answered with a yes, then it is necessary to consider if there is any reasons for the defendant not to owe a duty of care to the person in question who is arguing a duty of care has arisen. 

This may ask if there are any policy reasons why the defendant will not owe a duty of care.

The three stage test approach

In the vast majority of cases whether or not a duty of care is established is not the issue. For example, it is accepted without question that road users owe other road users a duty of care when driving on the road, and also in situations where an employer inevitable owes a duty of care to his employees.  

There is a three stage test that the courts have more recently adopted to once again establish the existence of a duty: 

  • Was the damage reasonably foreseeable?
  • Was there a relationship of proximity between the defendant and the claimant?
  • Is it just, and reasonable to impose a duty of care on the defendant?

Reasonable foreseeability

Is the probability that a particular event will occur. Probability can range from a virtual certainty to a near impossibility and will be up to the discretion of the courts.


In the everyday sense proximity will mean the physical closeness. However, in the legal sense and for the purpose of this three stage test, proximity will be satisfied if the product causes the injury.  

Proximity may also be established by the relationship between the defendant and the claimant. This could also include a situation where the defendant had a degree of control over the situation that he could have used to prevent the danger from occurring.

Fair, just and reasonable

Certain situation that may cause the courts to reject the claim of a duty of care on the basis it is not fair just or reasonable to do so could include: 

  • The existence of a duty of care would open the floodgates to loads of claims of the same nature
  • The claimant is the author of his own misfortune
  • The defendant is a public authority exercising a public function.