Tort Law
Negligence in Tort Law
Understand duty of care, breach, factual and legal causation, remoteness, damage and proof through leading negligence decisions.
The short answer
Negligence is actionable carelessness: a duty of reasonable care is breached and that breach causes legally recognised, non-remote damage.
The four questions in every negligence claim
Do not begin with the damage. Begin by asking whether this defendant owed this claimant a duty.
Duty of care
A duty is recognised where the relationship, foreseeable risk and legal context justify requiring reasonable care. Existing categories often decide the issue without inventing a new test.
Breach
Compare the conduct with a reasonable person in the same circumstances. Probability and seriousness of harm, usefulness of the activity and practicable precautions all matter.
Causation
Ask whether the damage would have occurred but for the breach. Then examine intervening events and whether the breach materially contributed to the injury.
Damage and remoteness
The claimant must prove actual legally recognised damage. The kind of harm must be reasonably foreseeable even if its precise extent was unusual.
Proof, professional skill and res ipsa loquitur
Negligence is proved on the balance of probabilities, but the evidence required depends on the nature of the activity.
Ordinary and skilled conduct
An ordinary activity uses the reasonable-person standard. A professional is judged against an ordinarily competent practitioner exercising that skill, not the most exceptional expert.
Res ipsa loquitur
Where the occurrence ordinarily does not happen without negligence and the relevant instrumentality was under the defendant’s control, the facts may support an inference calling for explanation.
Civil and criminal negligence
Civil liability can arise from failure to use reasonable care. Criminal negligence requires a much higher degree of blameworthiness and must not be inferred from every civil error.
How courts analyse a duty of care
Foreseeability begins the inquiry, but a foreseeable injury does not by itself create an unlimited duty to every affected person.
Start with an established relationship such as manufacturer and consumer, doctor and patient, employer and employee, occupier and lawful visitor, or road user and other road users. Existing categories usually provide a more reliable answer than reciting an abstract test.
For a novel duty, identify the foreseeable risk, closeness between the parties, control over the source of danger, claimant vulnerability and the wider legal context. Statutory duties require separate construction because a public obligation does not always confer a private damages action on every person who suffers loss.
Breach of duty and the reasonable precaution test
Breach asks what reasonable care required before the accident, not what appears obvious after the harm occurred.
Probability of harm
A highly likely injury generally demands stronger precautions, while a remote possibility may not justify expensive or disruptive measures.
Seriousness of harm
Even a lower probability may require care where the possible consequence is death, grave disability or special danger to a known vulnerable person.
Cost and practicality
The court compares the burden of precautions with the risk. A simple, established safety check is harder to omit than a speculative measure unavailable at the relevant time.
Purpose and emergency
Social utility and an urgent rescue may affect what is reasonable, but they do not give blanket immunity for careless planning or avoidable danger.
Causation, remoteness and defences
A proved breach is not enough. The claimant must connect it to the injury and show that the law treats the consequence as sufficiently close.
Apply the but-for question first: would the injury probably have occurred without the breach? Where several factors operate, medical or technical evidence may establish material contribution. A later event breaks the chain only when it is sufficiently independent and significant, not merely because something happened after the breach.
Remoteness asks whether the kind of harm was reasonably foreseeable. The defendant ordinarily takes the claimant as found once that kind of injury is foreseeable, even if a hidden vulnerability makes the final consequence unusually severe. Finally address consent, contributory negligence, limitation and any statutory framework.
Leading cases and what they establish
Read each authority for the proposition it proves, the legal question it answers and the reasoning that supports the result.
Donoghue v. Stevenson
[1932] AC 562
Facts: A friend bought Donoghue a sealed bottle of ginger beer. After part of it was consumed, a decomposed snail was found inside. Donoghue had no contract with the manufacturer.
Legal question: Can a manufacturer owe a duty of care to the ultimate consumer despite the absence of contractual privity?
Held: A manufacturer can owe reasonable care to the ultimate consumer where the product is intended to reach that consumer without intermediate examination.
Reasoning: The product was intended to reach the consumer without a reasonable chance of intermediate examination. Foreseeability and closeness of relationship justified a direct duty of care.
Why it matters: Use it to introduce the modern duty of care and foreseeable relational proximity.
Jacob Mathew v. State of Punjab
(2005) 6 SCC 1
Facts: After a hospital patient died during respiratory distress, a doctor faced criminal prosecution based on allegations that proper oxygen support had not been available.
Legal question: What degree of professional fault is required for civil and criminal medical negligence?
Held: Negligence consists of legal duty, breach and resulting damage, while criminal medical negligence requires a substantially higher degree of fault.
Reasoning: A professional is judged against an ordinarily competent practitioner in that field. Criminal liability requires negligence of a much higher degree than the want of reasonable care sufficient for a civil claim.
Why it matters: Use it for the basic elements and the distinction between civil and criminal negligence.
Read the judgmentPGIMER v. Jaspal Singh
(2009) 7 SCC 330
Facts: A hospital patient received blood of an incompatible group. Her condition deteriorated and the transfusion materially contributed to her death.
Legal question: Can a plainly avoidable hospital error support an inference of negligence and causation?
Held: Transfusion of mismatched blood was an error no ordinarily careful hospital would make and materially contributed to the patient’s death.
Reasoning: Blood-group verification is a basic safety step. The mismatch was not an acceptable professional judgment and the medical record connected it to the fatal deterioration.
Why it matters: Use it for breach, causation and an Indian illustration of res ipsa loquitur.
Read the judgmentUsing this topic in a legal answer
A clear answer sequence
- Identify the risk and formulate the duty.
- Compare the defendant’s conduct with the relevant standard of care.
- Apply but-for causation, material contribution and intervening causes.
- Address actual damage, remoteness and any available defence.
Points that are often confused
- Assuming carelessness is actionable without damage.
- Merging duty and breach into one conclusion.
- Treating res ipsa loquitur as automatic liability.
Open the revision and self-check sheet
Rules to retain
- Duty, breach, causation and damage are separate elements.
- Breach is judged objectively.
- Civil negligence uses the balance of probabilities.
- Res ipsa permits an inference, not a conclusive presumption.
- The kind of damage must not be too remote.
Questions to test understanding
- What factors influence the reasonable standard of care?
- Why must causation be proved after breach?
- When can res ipsa loquitur assist a claimant?
Questions students ask
Is every accident evidence of negligence?
No. The claimant must connect the accident to breach of a legal duty, unless the circumstances properly support an inference under res ipsa loquitur.
Does a professional have to show the highest possible skill?
No. The usual standard is the ordinary competence and care of a person professing that skill in the relevant circumstances.
Is foreseeability alone enough to create a duty of care?
No. Foreseeability is important, but the relationship, proximity, control, statutory context and recognised duty categories may also determine whether a duty exists.
What is the difference between causation and remoteness?
Causation asks whether the breach produced the injury. Remoteness asks whether the kind of consequence is legally too distant even though factual causation exists.
Does res ipsa loquitur shift the legal burden of proof?
It ordinarily supports an inference of negligence from the circumstances and calls for an explanation. It does not automatically impose liability or remove the claimant's overall civil burden.
Primary sources and further reading
- Supreme Court judgment in Jacob Mathew v. State of Punjab
- Supreme Court judgment in PGIMER v. Jaspal Singh
This article is written for legal education. Verify the governing provision, applicable amendments and complete judgment before relying on a proposition in practice.