Tort Law
Negligence in Tort Law
Understand duty of care, breach, factual and legal causation, remoteness, damage and proof through leading negligence decisions.
Quick 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.
Landmark cases
Learn the facts, the rule and the reason the case matters. The citation alone will not strengthen an answer.
Donoghue v. Stevenson
[1932] AC 562Facts: 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.
Use in an answer: Use it to introduce the modern duty of care and foreseeable relational proximity.
Jacob Mathew v. State of Punjab
(2005) 6 SCC 1Facts: 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.
Use in an answer: Use it for the basic elements and the distinction between civil and criminal negligence.
Read the judgmentPGIMER v. Jaspal Singh
(2009) 7 SCC 330Facts: 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.
Use in an answer: Use it for breach, causation and an Indian illustration of res ipsa loquitur.
Read the judgmentHow to write this answer in an exam
- 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.
Quick revision
- 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.
Test yourself
- What factors influence the reasonable standard of care?
- Why must causation be proved after breach?
- When can res ipsa loquitur assist a claimant?
Frequently asked questions
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.