Dispute Resolution
Negligence: A Comprehensive Guide
Author
Barbora Korcova
Author
Barbora Korcova
August 2, 2024
Dispute Resolution
Tort law
Negligence is a “tort” under English law. A tort is an act or omission, other than a breach of contract, that causes harm or loss to another person, resulting in legal liability. “Tort law” (which would cover claims in negligence) aims to provide remedies for these wrongful acts or omissions, such those caused by one’s negligence, to persons that have been harmed or otherwise caused loss.
In this blog, we explore the concept of negligence, its various types, the key elements that constitute negligence, practical examples and the process for making negligence claims.
What is negligence?
Negligence occurs when someone does not provide or adhere to the standard of care that a reasonable person would in similar circumstances, resulting in harm or loss to another person.
Negligence as a body of law is meant to deal with unintentional acts or omissions. In other words, it is not about one someone has done intentionally to someone else, but what they failed to do or how they fell short in some way.
Negligence forms the basis for many personal injury and professional liability cases, emphasising the importance of care and responsibility in various contexts.
Elements of negligence
To establish negligence in the UK, the claimant (the person bringing a claim) must prove four elements: (1) duty of care, (2) breach of that duty, (3) causation, (4) and loss (compensated by damages). Each of these elements plays a crucial role in determining whether the defendant (the person the claimant is suing) can be held legally responsible for the harm caused.
- Duty of care
The first element that must be established is that the defendant owed a duty of care to the claimant.
A duty of care is a legal obligation to avoid causing harm that could be reasonably foreseen. A duty of care might arise in many different circumstances, even without the parties’ direct understanding of that duty. The concept of duty of care was shaped by the landmark case Donoghue v Stevenson [1932] UKHL 100, which introduced the ‘neighbour principle’. According to this principle, individuals must take reasonable care to avoid acts or omissions that could foreseeably injure their ‘neighbours’ – those who are closely and directly affected by their actions.
The term “neighbours” is not meant to mean only those who live next to you (although it could do!), but rather the person(s) that individuals and businesses interact with every day.
For example, a surveyor would normally owe a duty of care to the person that appointed them to carry out a survey on a property.
In a professional context, the test is slightly different. A professional (a person acting in the context of their job – like a surveyor) first has to “assume” responsibility for the advice that they are giving and there exists a “special relationship” between the claimant and the defendant – Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] UKHL 4.
An assumption of responsibility means that the professional intended for their advice to be relied on by the recipient. Special relationships generally denote professional-client relationships (i.e. someone paying for advice or knowledge that they themselves do not have).
- Breach of duty
After a claimant successfully establishes that a duty of care existed between them and the defendant, the next requirement is that the claimant must be able to demonstrate to the court that the defendant breached this duty by some act or omission.
A breach occurs when the defendant’s conduct falls below the standard of care expected of a reasonable person in similar circumstances. But who is this reasonable person? The traditional legal definition was set out in by the Court in Hall v Brooklands Auto-Racing Club [1933] 1 KB 205:
‘The person concerned is sometimes described as ‘the man in the street,’ or ‘the man in the Clapham omnibus,’ … Such a man taking a ticket to see a cricket match at Lord’s would know quite well that he was not going to be encased in a steel frame which would protect him from the one in a million chance of a cricket ball dropping on his head.’
The standard of care is measured by what a reasonably prudent person would do, considering the risks and the context of the situation. For example, a driver is expected to follow traffic laws and drive safely (like a reasonable person would) to avoid causing accidents.
In a professional context, the standard of care is the same, phrased slightly differently: what would a reasonably prudent person with a similar background and professional experience of the professional in question do in the same circumstances?
- Causation
The third element, causation, involves proving that the defendant’s breach of duty directly caused the harm or loss suffered by the claimant. This is often referred to as a ‘but for’ causation test. This means that but for the defendant’s actions, the claimant would not have suffered harm.
Investigating the causes of the claimant’s loss is not always straightforward. Intervening events might ‘break the chain’ of causation which means that the defendant may not be liable for the loss (or just part of it). This includes acts of both the claimant (who may do things to make their loss worse) or third parties.
- Damage
Finally, the claimant must show that they suffered actual damage or injury as a result of the defendant’s negligence. This can include physical injury, emotional distress, property damage or financial loss.
The damage must be a direct result of the breach and the claimant must provide evidence to quantify the extent of their losses. The court will assess the damages and determine the appropriate compensation based on the severity and impact of the harm.
One of the most important rules around damage is the ‘thin skull rule.’ Simply put – the defendant will be liable for the loss he has caused the claimant, even if the defendant could not foresee the loss (because they, for example, did not know the claimant had a severe allergy.
Example scenario:
Imagine a pedestrian, Alice, is walking along a pavement. A driver, Bob, is distracted by his mobile phone and runs a red light, striking Alice and causing her to break her leg.
- Duty of Care: Bob owed a duty of care to Alice and other pedestrians to drive safely and obey traffic signals.
- Breach of Duty: Bob breached this duty by driving while distracted and running the red light.
- Causation (‘but for’ test): Would Alice have suffered a broken leg but for Bob’s action of running the red light? No, Alice would not have been struck and injured if Bob had not run the red light. Therefore, Bob’s breach of duty directly caused Alice’s injury.
- Damage: Alice suffered actual damage, specifically a broken leg, as a result of the incident.
Examples of negligence in practice
Negligence can occur in various aspects of daily life and professional practice. Understanding practical examples of negligence helps illustrate how the principles are applied in real-world scenarios. Here are some common examples of negligence:
Professional negligence
Professionals such as lawyers or accountants have a duty of care to their clients. Professional negligence occurs when they fail to meet the standards expected in their profession. For example:
- Financial advice errors: an accountant providing incorrect tax advice, leading to significant financial penalties for the client.
- Legal malpractice: a solicitor missing a critical filing deadline in a court case, resulting in a loss for the client.
Product Liability
Manufacturers and retailers have a duty to ensure their products are safe for consumers. Product liability negligence can occur when defective products cause harm, for example:
- Faulty appliances: an electrical appliance catching fire due to a manufacturing defect, causing injury or property damage.
- Dangerous toys: a children’s toy containing small parts that pose a choking hazard, leading to injury.
Claims in Negligence
To make a claim for negligence, the claimant must demonstrate the elements mentioned earlier. The process typically involves:
- Consulting a solicitor who specialises in this area of law. The solicitor will assess your claim, gather relevant initial information, advise you on your legal options and estimate your damages.
- Pre-action protocols. There are specific protocols for negligence related issues such as Pre-Action Protocol for Personal Injury Claims or Pre-Action Protocol for Professional Negligence. For the claims that do not fit any specific category, the Practice Direction on Pre-Action Conduct and Protocols can be used.
- Filing a claim. If the issue is not resolved through the pre-action protocol, the next step is to file a claim in the appropriate court. This includes preparing legal documents, paying court fees and formally serving a claim on the defendant, notifying them of the claim and requiring them to respond within a specified time frame.
- Disclosure and evidence. During the disclosure phase, both parties gather and exchange evidence to support their cases that was not previously available to them. Parties will also gather together witness statements and expert reports to use during the trial. In negligence claims, expert evidence is frequently required.
- Trial and judgment. If your case proceeds to trial, the trial takes place in a court room where both parties present their evidence and arguments. Witnesses are examined and cross-examined by the lawyers from both sides. After considering all the evidence, the judge will make a determination on liability and, if appropriate, award damages.
FAQ
How do I know if I have a valid negligence claim?
To determine if you have a valid negligence claim, consult a solicitor who can evaluate your case. They will assess whether the elements of negligence are present and advise on the strength of your claim.
What types of damages can I claim in a negligence case?
Damages in a negligence case can include
- Compensatory damages: to cover medical expenses, lost wages, and other financial losses.
- General damages: for pain and suffering, emotional distress, and loss of enjoyment of life.
- Special damages: for specific financial losses related to the negligence.
Can I claim for negligence if I was partially at fault?
Yes, you can still claim for negligence even if you were partially at fault. This is known as contributory negligence. However, your compensation may be reduced in proportion to your share of the fault.
What if more than one person/organisation was negligent?
If there is more than one person/organisation responsible for negligence, they can be held jointly liable for the damage in question. The court will determine the contribution each should make depending on what the court considers to be just and equitable in relation to the extent of responsibility for the damage.
What is the time limit for making a negligence claim in the UK?
The time limit, or limitation period, for claims in tort is six years from the date in which the claimant had a valid claim.
However, do note that personal injury claims (frequently brought in the context of negligence) is three years.
Do I need a solicitor to make a negligence claim?
While it is not legally required to have a solicitor to make a negligence claim, we would highly advise you to have one. A solicitor can provide expert guidance, ensure that all legal procedures are followed correctly, and increase the likelihood of a successful outcome for you.
Conclusion
The process of making a claim for negligence in the UK is comprehensive, ensuring that all aspects of the case are thoroughly examined and that both parties have the opportunity to present their evidence. Successfully proving negligence requires careful preparation and adherence to legal procedures.
If you believe you have been a victim of negligence or need advice on a potential claim, contact our Sasha who would be happy to provide you with the guidance and representation you need. Don’t hesitate to reach out for a consultation here.
