Establishing a claim in negligence

What is a claim in negligence?

Negligence is a tort and actionable in the civil courts. Essentially, negligence is typically the failure to act with due care causing harm to someone else. Harm can include personal injury, damage to property, and economic loss.

How do you establish a claim in negligence?

To succeed in a claim for negligence, the claimant must satisfy the following requirements on the balance of probabilities:

  • The defendant owed a duty of care to the claimant;
  • The defendant breached that duty of care;
  • The defendant’s breach of the duty of care caused damage or harm to the claimant;
  • The harm caused was not too remote.

If a claimant can satisfy these requirements, they will have a valid claim. If proceedings are formally issued, the defence will either admit liability, or defend the claim.

The development of a general duty of care

There have been numerous cases where the courts have provided various interpretations and decisions on whether there should be a general duty of care owed by all. In the famous case of Donoghue v Stevenson (1932), Lord Atkin stated that: “You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour”. This is the established general duty of care.

Who is my neighbour?

Lord Aktin continued that a neighbour is anyone who is “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 essentially include anyone you know well enough to think that they could be affected by your actions or failure to act when doing so.

What is ‘reasonably foreseeable’?

If it is reasonably foreseeable that someone’s negligent actions or omissions are likely to result in harm or injury to someone else, then a negligence claim is likely to succeed. This is an objective test and it is not relevant whether or not the victim foresaw that harm was likely to result from those negligent actions or omissions.

The individual who suffers the harm or injury does not necessarily have to be identifiable for the foreseeability test to apply. Furthermore, it is enough to show that the claimant is part of a group of people who could suffer some kind of harm from the careless actions.

How do you establish a duty of care?

Traditionally, there is a two-stage test to establish whether a person owes a duty of care to someone else:

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 their actions or omissions were careless and likely to cause some form of damage?

Stage two

If stage one is satisfied, it is then necessary to consider if there is any reason for the defendant not to owe that duty of care; for instance, there may be policy reasons why not.

The three-stage test approach

In most cases, whether or not a duty of care exists is not at 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 employers owe a duty of care to their employees.

More recently, a three-stage test has been adopted by the courts to establish the existence of a duty of care:

  • 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

For the harm or loss to be reasonably foreseeable, a remote possibility of injury is not enough – there has to be a sufficient probability of injury to lead a reasonable person in the position of the defendant to anticipate it.

Proximity

Proximity in this context may be established by the relationship between the defendant and the claimant. This may be physical proximity, a casual proximity, or an intangible proximity such as in an employer/employee relationship, or where one party has assumed a responsibility to take care to avoid or prevent injury, loss or damage to another, or where a party relies on that care.

Fair, just and reasonable

In certain cases, the courts may reject reliance on a duty of care on the basis that it is not fair, just or reasonable to do so. This could include situations where:

  • The existence of a duty of care would open the floodgates to numerous similar claims the ‘floodgates principle’;
  • The claimant is the author of his own misfortune;
  • The defendant is a public authority exercising a public function.

If each stage is satisfied, the claimant will win a negligence claim – leaving damages to be decided.