Negligence Introduction: Overview

Negligence is one of several different torts in the English legal system. Torts are civil wrongs other than breaches of contract or equitable wrongs.

Torts, breaches of contract, and equitable wrongs are fundamentally the same thing — they are civil wrongs. Civil wrongs are private wrongs as opposed to public wrongs such as crimes. Wrongs are just the breach of a duty. Civil wrongs are breaches of primary duties instead of secondary duties like duties to pay damages to someone after breaching a primary duty.

So, the distinctions between torts, breaches of contract, and equitable wrongs are because of historical accident rather than any conceptual distinction.

From the particular to the general

Historically there was no such thing as a tort of negligence. That didn't mean you couldn't receive damages as a result of an injury caused by someone else's carelessness. But, your case had to fall into a particular category that existed, like professional negligence or injury on the road. So, there was a way to recover for negligence, but you had to show that your case fell into a particular category. The shift to the general only came to full fruition in the case of Donoghue v Stevenson. While the case is important in the law of product liability, holistically, the case's primary significance is how the House of Lords tried to set out a general principle of negligence underlying the particular categories of case.

[I]n English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.

         Donoghue v Stevenson [1932] AC 562, 580 (Lord Atkin)

Over time, after Donoghue, courts took the case to mean that the old categories had been done away and replaced with a general presumption of liability where the defendant's positive negligent act caused injury to the victim or damage to the victim's property.

Today, Donoghue v Stevenson stands for the proposition that there is a strong presumption of a duty of care where a positive act causes damage. There is still an echo of the old categories approach: those cases that do not fall within this presumption are separated into different categories at the duty in law stage.

The categories of negligence are never closed.

         Donoghue v Stevenson [1932] AC 562, 619 (Lord Macmillan)

Negligence as a cause of action is very broad because it is defined solely through the defendant's conduct—the fact that he was negligent. Thus, negligence is highly flexible and can readily expand to take on new types of case. But, the broadness of negligence also means that negligence is necessarily based on very general ideas of fault, damage, and causation, and the abstraction of these concepts makes negligence to understand.

The structure of the negligence enquiry

I found the following structure helpful because it separates the different issues in a negligence enquiry as clearly as possible. So this structure allows as clear analysis as possible of how negligence law works. Some of the difficulties and confusion in understanding negligence come from the conflation of separate factors.

Element 1: duty in law

The first element is the duty in law. The issue here is whether there is (or should be) a rule of law that either allows or bars recovery in this category of case? For example, do the police owe a duty of care to the maker of an emergency call? If the answer is no, then the enquiry stops here, else it continues to the fault stage. It is crucial to think of in terms of general categories of case at this stage.

Element 2: fault ('breach of duty')

The second element is the fault element, and this is often called the breach of duty stage. Here the issue is whether the defendant was at fault. This question is answered by asking whether the defendant fell below the standard of the reasonable person; that is, whether the defendant created unreasonable risks of injury to others.

Element 3: damage

The third element is the damage stage. Here, the question is whether the claimant has suffered a form of harm that is actionable in negligence.

An example of a case where this element was missing is:

         Reilly v Merseyside RHA (1995) 6 Med LR 246

The claimants got stuck in an overcrowded hospital lift for an hour due to the defendant's negligence, which caused them to suffer anxiety and distress. The court rejected the claim because mere emotional distress without lasting psychological damage is not actionable in negligence.

Element 4: factual causation

Now that fault and damage have been established; we move to the connection between them, i.e. causation. There are two parts to the causation enquiry, factual and legal causation. At this factual causation stage, the question is whether there was a historical connection between the defendant's negligent conduct and the claimant's damage. Courts typically resolve this question with the but-for test, asking whether the claimant would still have suffered the damage if the defendant had not been negligent. (For example, but for running the red light, the collision would not have occurred).

Element 5: legal causation

The second stage of the causation enquiry is legal causation. Here the issue is whether there was an intervening act or omission of the claimant or a third party which 'broke the chain of causation' between the defendant's negligent conduct and the claimant's damage? An intervening act or omission is also called a novus actus interveniens.

For example, imagine a road accident speeding case where an ambulance takes the claimant to the hospital. The medical care is negligent, and the claimant is left disabled after suffering an avoidable complication of the initial injuries. Thus, while the speeder is undoubtedly liable for the initial injuries, a court might hold that they are not liable beyond the initial injuries because the negligent hospital care broke the chain of causation.

Element 6: remoteness of damage/duty in fact

The essential issue under this element is whether the damage suffered by the claimant was the materialisation of one of the risks which made the defendant's conduct negligent in the first place.

So, imagine that the defendant was negligently speeding down a country road during a storm when a tree fell on the car and injured the passenger. All the previous elements of the negligence enquiry are satisfied. Yet, it is clear that in this case, the defendant would not be liable because the risk of trees falling on your car is not one of the risks that make it negligent to drive too fast.

There is also a requirement closely related to remoteness called the duty in fact requirement. The risk of injury to the claimant must have been one of the risks that made the defendant's conduct negligent. On the one hand, the remoteness of damage question focuses on the foreseeability of the particular type of damage. On the other hand, the duty in fact requirement focuses on the foreseeability of damage to the particular claimant. One famous example of the duty in fact requirement is the American case of:

         Palsgraf v Long Island Railroad 162 NE 2d 99 (NY 1928)

Two train guards helped a passenger board a train when they carelessly knocked an innocent-looking parcel out of his hands, unknown to them the package contained fireworks. The parcel fell under the train, causing an explosion which led to a set of scales at the other end of the platform falling onto the claimant and injuring her. The claimant's action failed in the Supreme Court of New York because injury to the claimant had not been a foreseeable consequence of the guard's conduct. Maybe the guards had acted negligently towards the first passenger and his property. Still, an injury to the claimant had not been one of the risks that made their conduct negligent.

Defence 1: volenti (consent)

The first defence is volenti, also known as consent. Here the defendant needs to establish that the claimant freely and knowingly consented to the defendant's negligent conduct.

Imagine that the claimant is in the defendant's car and encourages the defendant to drive too fast, leading to a crash. In common law, the claimant's encouragement of the defendant's negligence could lead to a volenti defence, defeating the negligence claim. But, there is now statutory restriction to the operation of this defence in vehicle cases. Another example is that of a boxer consenting to be reasonably punched.

Defence 2: exclusion of liability

The second defence is exclusion of liability. Here the defendant needs to establish that the claimant waived the right to sue in the event that the claimant suffered damage due to the defendant's negligence. Courts normally find this defence based on terms of a contract between the claimant and defendant or where there is an effective exclusion notice. Exclusion of liability is where the claimant agrees not to sue; meanwhile, volenti is where the claimant agrees to the negligent conduct itself.

Defence 3: illegality

The third defence is illegality, a general defence across private law, and not unique to negligence. In the context of a negligence action, the defendant has two options to establish the defence. Either show that the claimant is founding their action on their own criminal conduct, or show that the claimant engaged in serious criminal activity which was inextricably linked to the alleged tort.

Imagine that the claimant stages a road accident to defraud an insurance company but this went wrong and the claimant was actually seriously injured. If the defendant can show this, then the claimant might lose their action because of their illegality.

Defence 4 (partial defence): contributory negligence

The final defence is contributory negligence. It is a partial defence leading to a reduction in damages by an amount deemed appropriate by the court. Here the defendant needs to establish that the claimant was partly to blame for the injury regarding which they are bringing their claim.

Imagine the claimant is in a road accident and was not wearing a seatbelt, and this meant that her injuries were worse than they otherwise would have been. This is an example of contributory negligence.