Negligence: establishing a duty of care, breach of that duty by falling below the standard of the reasonable person, and damage that is factually caused and not too remote.

What this dot point is asking

This dot point covers the tort of negligence, the central tort in WJEC Unit 2. To succeed a claimant must prove three elements: that the defendant owed a duty of care, that the defendant breached that duty, and that the breach caused damage that is not too remote. WJEC tests both accurate explanation of the elements (with cases) and their application to a scenario, advising whether a claim succeeds.

The answer

Duty of care

The Caparo v Dickman three-stage test asks:

1. Foreseeability: was the harm to the claimant reasonably foreseeable?
2. Proximity: was there a sufficiently close relationship between claimant and defendant?
3. Fair, just and reasonable: is it fair, just and reasonable to impose a duty in these circumstances?

Breach of duty

The court decides breach by weighing risk factors:

• Likelihood of harm. A low risk may mean no breach (Bolton v Stone, a cricket ball rarely cleared the fence).
• Seriousness of harm. A known vulnerability raises the standard (Paris v Stepney, a one-eyed worker who lost his sight).
• Cost and practicality of precautions. The defendant need only take reasonable steps (Latimer v AEC, sawdust on a flooded floor was enough).
• Social utility. A worthwhile aim can justify a greater risk (Watt v Hertfordshire, rushing to an emergency).

Damage: causation and remoteness

The claimant must prove the breach caused the damage. Factual causation uses the "but for" test: but for the defendant's breach, would the harm have occurred? In Barnett v Chelsea and Kensington Hospital a doctor's failure to examine a patient did not cause the death, because the patient would have died of arsenic poisoning anyway, so the test was not satisfied. Legal causation (remoteness) limits liability to damage of a reasonably foreseeable type (The Wagon Mound); the defendant is liable even if the extent was greater than expected, provided the type was foreseeable.

Examples in context

The risk factors decide most breach questions. In Bolton v Stone a cricket ball had cleared the ground only a handful of times in decades, so the risk was so low that taking no further precautions was not a breach. Contrast Paris v Stepney, where the employer knew the claimant had only one good eye: the seriousness of the potential harm (total blindness) raised the standard, so failing to provide goggles was a breach even though the risk to a two-eyed worker might not have required them. Causation then narrows liability further: in Barnett the hospital was plainly negligent, yet the claim failed because the patient would have died regardless, showing that breach without causation is not enough. Together these cases let you advise precisely whether a claimant can recover.

Try this

Q1. Name the three stages of the Caparo test for a duty of care. [3 marks]

• Cue. Reasonable foreseeability of harm, proximity, and whether it is fair, just and reasonable to impose a duty.

Q2. What is the 'but for' test and which case illustrates it? [2 marks]

• Cue. But for the defendant's breach, would the harm have occurred? (Barnett v Chelsea and Kensington Hospital.)

Q3. Advise whether an injured claimant can establish a claim in negligence. [20 marks]

• What the marker wants. Duty (Donoghue, Caparo), breach (the reasonable person standard, variations and risk factors), and damage (the 'but for' test and remoteness), each applied to the facts, with a reasoned conclusion.