Liability in negligence: the duty of care (Donoghue v Stevenson and the Caparo test), breach of duty (the reasonable person and the risk factors), and damage (factual causation by the but for test and remoteness under The Wagon Mound).

What this dot point is asking

Eduqas tort requires you to prove negligence through its three elements: a duty of care (Donoghue v Stevenson and the Caparo test), a breach of that duty (the reasonable person and the risk factors), and damage (factual causation by the "but for" test and remoteness under The Wagon Mound). The skill is to apply each element to a scenario (AO2) and to evaluate the tests (AO3).

The answer

Duty of care

Breach of duty

The defendant breaches the duty if their conduct falls below the standard of the reasonable person carrying out that activity (Blyth v Birmingham Waterworks). The standard is objective: it is not lowered for a learner driver (Nettleship v Weston). A professional is judged against a reasonable member of that profession (Bolam), and a child against a reasonable child of the same age (Mullin v Richards).

Damage: causation and remoteness

The breach must cause the claimant's damage. Factual causation is tested by the "but for" test: but for the defendant's breach, would the harm have occurred? In Barnett v Chelsea and Kensington Hospital a doctor negligently failed to examine a man, but he would have died anyway from the poison, so the breach did not cause his death. The damage must also not be too remote: it must be of a reasonably foreseeable type (The Wagon Mound, where damage by fire was unforeseeable from an oil spill). The thin (egg) skull rule qualifies this: the defendant must take the victim as found, so is liable for the full extent even if an unusual susceptibility makes it worse (Smith v Leech Brain, a minor burn triggered fatal cancer).

Examples in context

A strong answer takes duty, breach and damage in order, each with authority, and concludes on liability.

Try this

Q1. Explain how the courts decide whether a defendant has breached a duty of care. [10 marks]

• What the marker wants. Precise AO1: the objective standard of the reasonable person doing that activity (Blyth; Nettleship; Bolam), then the risk factors (likelihood, Bolton v Stone; seriousness, Paris; cost and practicality, Latimer; social utility, Watt).

Q2. A factory fails to provide guards on a machine and a worker loses two fingers. Advise the worker on a claim in negligence. [20 marks]

• Cue. An AO2 application: an employer owes an established duty to employees; failing to guard a dangerous machine breaches the standard (Paris shows greater care for serious harm); the but for test links the breach to the injury (Barnett); the harm is a foreseeable type (The Wagon Mound), so the employer is liable subject to any contributory negligence.