Negligence: physical injury to people and damage to property

Q: How do the courts establish a duty of care in ordinary versus novel situations under Robinson (2018)?

Under Robinson [2018] , courts first look to existing precedent or established duties; the three-stage Caparo test is reserved strictly for genuinely novel situations .

Q: What are the three stages of the Caparo test for novel duties of care?

The three stages from Caparo v Dickman [1990] are: (1) reasonable foreseeability of harm, (2) proximity of relationship, and (3) whether it is fair, just, and reasonable to impose a duty.

Q: How is the basic standard of care defined in negligence?

It is defined objectively in Blyth v Birmingham Waterworks Co [1856] as doing something a reasonable person would not do, or failing to do something a reasonable person would do.

Q: How does the law adjust the standard of care for learners, professionals, and children?

Learners are judged against a competent, qualified person ( Nettleship ); professionals against a competent professional body ( Bolam / Montgomery ); and children against a reasonable child of their exact age ( Mullin ).

Q: What risk factors do courts balance to decide if the defendant met the standard of care?

Courts balance the likelihood of harm ( Bolton / Miller ), gravity/seriousness of harm ( Paris ), cost/practicality of precautions ( Latimer ), and social utility ( Watt ; SARAH Act 2015).

Q: How is factual causation established in negligence, and how can the chain of causation be broken?

Factual causation is proved using the 'but for' test ( Barnett [1969] ); the chain can be broken by a novus actus interveniens (intervening third-party act, claimant act, or natural event).

Q: What is the test for remoteness of damage in negligence?

Under The Wagon Mound (No. 1) [1961] , the type or kind of damage must be reasonably foreseeable at the time of the breach.

Q: How does the partial defence of contributory negligence operate?

Under the Law Reform (Contributory Negligence) Act 1945 , damages are reduced proportionately if the claimant's own lack of care contributed to their injury (e.g. Froom v Butcher ).

Law 7162 · AQA A Level · 15 min read · Updated: 7 Sept 2026

Welcome to Negligence: Physical Injury and Property Damage

Welcome to one of the most essential topics in AQA A-Level Law (Paper 2: Tort)! Negligence is all about holding people legally responsible when their careless actions cause physical injury to someone else or damage to their property.

Don't worry if this area of law seems packed with tests and cases at first. Negligence follows a clear, logical formula. Once you master the step-by-step structure, you will be able to tackle any exam scenario with confidence.

Crucial Exam Alert — Civil vs Criminal Terminology:
Always remember that Tort is civil law, not criminal law! Using the wrong words is an instant mark-loser in Paper 2.
• Say claimant (the person suing), NOT victim or prosecution.
• Say defendant (the person being sued).
• Say liable or not liable, NOT guilty or not guilty.
• The standard of proof is the balance of probabilities, NOT beyond reasonable doubt.
• The outcome is a civil remedy such as damages, NOT punishment or prison.

To establish liability in negligence, the claimant must prove three core elements on the balance of probabilities:
1. Duty of Care: The defendant owed the claimant a legal duty to be careful.
2. Breach of Duty: The defendant fell below the standard of care expected of them.
3. Damage (Causation and Remoteness): The defendant's breach caused the claimant's injury or property damage, and the harm was not too remote.

Element 1: Duty of Care

Before someone can be held liable, the law must recognize that they had an obligation to take care of the claimant's safety.

The Modern Starting Point: Robinson (2018)

For many years, students were taught to apply a three-part test to every single scenario. However, the UK Supreme Court updated and clarified this in Robinson v Chief Constable of West Yorkshire Police [2018].

Under Robinson, the court looks first at existing precedent. If the relationship between the parties falls into an established duty of care, you do not need to apply public policy tests. You simply state that a duty exists based on established law!

Common Established Duties include:
• Road users to other road users (drivers to passengers, pedestrians, and other drivers)
• Doctors / hospitals to patients
• Employers to employees
• Manufacturers to consumers
• Teachers / schools to pupils

Incremental Development by Analogy:
If the situation is not an exact match to an established duty, courts develop the law incrementally and by analogy to established cases.

The Foundational Principle: The Neighbour Principle

Where did duties come from originally? In the landmark case of Donoghue v Stevenson [1932] (the famous snail in the ginger beer bottle), Lord Atkin established the Neighbour Principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your "neighbour". In law, your neighbour is anyone so closely and directly affected by your act that you ought reasonably to have them in mind.

Novel Situations: The Caparo Three-Part Test

If an exam scenario presents a completely novel situation (a brand-new type of relationship never previously decided by the courts), the court turns to the three-stage test from Caparo Industries plc v Dickman [1990].

Stage 1: Reasonable Foreseeability
Would a reasonable person in the defendant's shoes have foreseen that their conduct could cause harm to someone in the claimant's position?
• Kent v Griffiths [2000]: An ambulance took an unreasonably long time to arrive without justification, causing an asthma patient to suffer respiratory arrest. It was reasonably foreseeable that a severe delay would cause further physical harm to the patient.

Stage 2: Proximity of Relationship
There must be a close relationship between the claimant and the defendant. Proximity can be in terms of time and space or a legal relationship.
• Bourhill v Young [1943]: A pregnant woman heard a motorcycle crash 50 feet away and later saw blood on the road, suffering shock. The court held the motorcyclist owed her no duty; she was not in the immediate zone of danger and was not physically proximate.
• McLoughlin v O'Brian [1983]: A mother rushed to the hospital and saw her injured family in an untreated state shortly after a horrific car crash. Proximity was established because she experienced the immediate aftermath.

Stage 3: Fair, Just, and Reasonable
This is a judicial policy filter. Even if harm is foreseeable and parties are proximate, would imposing a duty be fair, or would it open the "floodgates of litigation" and harm public service efficiency?
• Hill v Chief Constable of West Yorkshire [1989]: The mother of the final victim of the Yorkshire Ripper sued the police for failing to catch him sooner. The House of Lords held it was not fair, just, and reasonable to impose a blanket duty of care on police to apprehend unknown serial criminals, as it would lead to defensive policing and misdirected resources.

Key Takeaway for Duty of Care:

Exam Strategy Tip: If your scenario involves a driver hitting a pedestrian, do not spend paragraphs writing about the three stages of Caparo! State that under Robinson [2018], an established duty exists between road users. Save the 3-part Caparo test for genuinely new, novel situations.

Element 2: Breach of Duty

Once a duty of care is established, you must ask: Did the defendant break that duty?

The Objective Standard of Care

Breach of duty is defined by Alderson B in Blyth v Birmingham Waterworks Co [1856] as:
"Failing to do something which a reasonable person would do, or doing something which a reasonable person would not do."

This is an objective standard. The court does not ask what the defendant personally thought was okay; they judge the defendant against the hypothetical "reasonable person".

Variations of the Reasonable Person

The law adjusts the standard depending on specific roles and ages:

1. Learners and Inexperienced Individuals:
Inexperience is no defence. A learner is judged against the standard of a competent, qualified person performing that task.
• Nettleship v Weston [1971]: A learner driver crashed into a lamp post and injured her instructor. The court held that a learner driver must meet the standard of a reasonably competent, qualified driver to protect the public.

2. Professionals:
Professionals are judged against the standard of a reasonably competent professional in that specific field.
• Bolam v Friern Hospital Management Committee [1957]: A doctor is not in breach if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion.
• Montgomery v Lanarkshire Health Board [2015]: Doctors have a legal duty to take reasonable care to ensure patients are aware of any material risks involved in recommended treatment.

3. Children and Young People:
Children are judged against the objective standard of a reasonable child of the defendant's exact age.
• Mullin v Richards [1998]: Two 15-year-old schoolgirls were play-fighting with plastic rulers when a ruler snapped, blinding one girl. The defendant was judged against a reasonable 15-year-old and was found not liable.
• Orchard v Lee [2009]: A 13-year-old boy running in a school playground collided with a supervisor. He was not liable because his conduct was typical of a normal 13-year-old at play.

Risk Factors: Balancing the Standard of Care

To determine if the reasonable person would have acted differently, the court weighs several risk factors:

• Size / Likelihood of the Risk: The higher the chance of injury, the greater precautions required.
Compare: Bolton v Stone [1951] (cricket ball hit out of ground only 6 times in 30 years — very low risk, no breach) with Miller v Jackson [1977] (cricket balls hit into claimant's garden regularly — high risk, breach found).

• Seriousness / Gravity of Potential Harm: If the claimant has a known vulnerability, greater care must be taken.
Authority: Paris v Stepney Borough Council [1951]: An employer knew a mechanic was already blind in one eye. Failing to provide safety goggles was a breach because the consequences of injury to his remaining eye were catastrophic.

• Cost and Practicality of Precautions: The defendant only needs to take reasonable precautions in proportion to the risk.
Authority: Latimer v AEC Ltd [1953]: A factory floor became slippery after a flood. The owners used 3 tons of sawdust and put up warning signs. The court held they were not required to close the entire factory at immense cost; their precautions were reasonable.

• Social Utility / Public Benefit of the Conduct: If the defendant was engaged in a lifesaving or emergency activity, greater risks may be justified.
Authority: Watt v Hertfordshire County Council [1954]: Firefighters transporting heavy lifting gear on an unsuitable vehicle to save a trapped woman were not liable when a fireman was injured. The emergency justified the risk.
Statutory Support: Section 1 of the Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015 (SARAH Act) remind courts to consider whether the defendant was acting for the benefit of society or heroically when assessing breach.

Key Takeaway for Breach:

Always ask two questions: (1) What was the appropriate standard of care (e.g., standard adult, professional, learner, child)? (2) Did the risk factors (likelihood, seriousness, cost of precautions, social value) suggest the defendant did enough to meet that standard?

Element 3: Damage (Causation and Remoteness)

Even if there is a duty and a breach, the claimant must prove that the defendant's breach legally and factually caused the damage, and that the damage was not too remote.

Part 1: Factual Causation

The "But For" Test:
The claimant must prove on the balance of probabilities that: "But for the defendant's breach of duty, would the harm have occurred?"
• If the answer is NO (the harm would not have happened without the breach), factual causation is satisfied.
• If the answer is YES (the harm would have happened anyway), the breach did not cause the damage.
• Barnett v Chelsea & Kensington Hospital Management Committee [1969]: A night-duty doctor negligently refused to examine a nightwatchman who had been vomiting. The man died of arsenic poisoning hours later. Evidence showed that even with prompt treatment, he would have died. Factual causation failed under the "but for" test.

Multiple Causes and Material Contribution:
• Bonnington Castings Ltd v Wardlaw [1956]: Where multiple factors cause injury, the defendant is liable if their breach made a material contribution to the harm.
• Wilsher v Essex Area Health Authority [1988]: Where there are several competing, independent possible causes of harm, the claimant must prove the breach was the probable cause.

Intervening Acts (Novus Actus Interveniens):
An intervening act can break the chain of causation if it is independent, unforeseeable, and catastrophic:
• Act of a Third Party: Knightley v Johns [1982] (a senior police officer's negligent orders in a tunnel broke the chain of causation from the initial car accident).
• Act of the Claimant: McKew v Holland & Hannen & Cubitts [1969] (claimant with an injured leg unreasonably attempted to jump down steep stairs without a handrail; his own reckless act broke the chain).
• Unforeseeable Natural Event: An extraordinary act of nature can break the chain.

Part 2: Legal Causation and Remoteness of Damage

Even if factual causation is established, the damage must not be too remote from the breach.

1. The Test of Reasonable Foreseeability of Kind of Harm:
The type or kind of damage must be reasonably foreseeable at the time of the breach.
• The Wagon Mound (No. 1) [1961]: Oil was negligently spilled into Sydney Harbour. Days later, molten metal from welding ignited cotton floating in the oil, causing a massive fire that destroyed the wharf. The court held that while pollution damage was foreseeable, damage by fire was not reasonably foreseeable. The fire damage was too remote.

2. Extent and Precise Manner Need NOT Be Foreseen:
As long as the general type of injury or damage was foreseeable, the exact chain of events or severity does not matter.
• Hughes v Lord Advocate [1963]: Workmen left an open manhole covered by a tent and surrounded by paraffin lamps. An 8-year-old boy knocked a lamp into the hole, causing a huge explosion and severe burns. The court held that burn injuries were foreseeable; the fact that the burns occurred via an unexpected explosion did not make them too remote.
• Bradford v Robinson Rentals [1967]: An employee was required to drive an unheated van in sub-zero winter weather and suffered severe frostbite. Cold-related injuries were foreseeable; the severity of frostbite did not make it too remote.

3. The "Thin Skull" (Eggshell Skull) Rule:
The defendant must take the claimant as they find them. If the claimant has a pre-existing physical or medical condition making them more vulnerable to injury, the defendant is liable for the full extent of the harm.
• Smith v Leech Brain & Co [1962]: A worker suffered a minor burn to his lip due to employer negligence. The burn triggered a pre-existing pre-cancerous condition, and he died of cancer. The employer was held fully liable for his death.

Key Takeaway for Damage:

Always split damage into two steps: (1) Factual Causation ("But for" test + check for intervening acts), then (2) Remoteness (Is the type of damage foreseeable under The Wagon Mound? Apply Hughes and the Thin Skull Rule if relevant).

Defences in Negligence

If the claimant successfully proves duty, breach, and damage, the defendant can raise legal defences to reduce or eliminate liability.

1. Contributory Negligence (Partial Defence)

Governed by the Law Reform (Contributory Negligence) Act 1945.

• What it is: A partial defence where the defendant proves the claimant failed to take reasonable care for their own safety, contributing to their own injuries.
• Effect: It does not dismiss the claim; it merely reduces the damages (compensation) awarded by a percentage reflecting the claimant's share of fault.
• Examples in Case Law:
- Failing to wear a seatbelt: Froom v Butcher [1976] (damages reduced by 25% if injury would have been avoided, or 15% if injury would have been less severe).
- Accepting a lift from an obviously intoxicated driver: Owens v Brimmell [1977] (damages reduced by 20%).

2. Consent / Volenti Non Fit Injuria (Complete Defence)

Volenti non fit injuria translates to "to a willing person, no injury is done."

• What it is: A complete defence resulting in zero liability for the defendant.
• Requirements: The defendant must prove that the claimant:
1. Had full knowledge and understanding of the specific risk; and
2. Freely and voluntarily agreed to run that risk.
• Morris v Murray [1991]: The claimant went on a drunken joyride in a light aircraft piloted by his heavily intoxicated friend. The plane crashed. The court held the claimant had fully consented to the obvious, extreme risk; volenti succeeded.
• Stermer v Lawson [1977]: The claimant was allowed to borrow a motorbike but was not properly shown how to use it. The defence of volenti failed because the claimant did not fully understand the nature of the risk.
• Statutory Exclusion: Under Section 149 of the Road Traffic Act 1988, the defence of volenti cannot be used by drivers against motor vehicle passengers!

Remedies in Negligence

The primary civil remedy for negligence is an award of compensatory damages. The goal of damages is restitutio in integrum (to restore the claimant, as far as money can do, to the position they would have been in had the tort never occurred).

Types of Damages: Special vs General

• Special Damages: Pecuniary (financial) losses that can be precisely calculated up to the exact date of trial.
Examples: Medical expenses incurred, prescription costs, lost earnings up to the trial date, vehicle repair receipts.

• General Damages: Non-pecuniary losses or future financial losses that cannot be calculated precisely and must be estimated by the court.
Examples: Pain, Suffering, and Loss of Amenity (PSLA — e.g. inability to play a favourite sport), future loss of earnings, and costs of future medical care.

Payment Methods

Under the Damages Act 1996, courts can award damages as:
• Lump Sum: A one-off single payment.
• Structured Settlements: Periodic regular payments over a lifetime to cover long-term care needs.

Mitigation of Loss

The claimant has a legal duty to take reasonable steps to keep their losses to a minimum (mitigation of loss). They cannot claim for losses that could reasonably have been avoided.

Exam Summary and Scenario Checklist

When answering an AQA Paper 2 problem scenario involving physical injury or property damage, follow this step-by-step formula:

Step 1: Duty of Care
• Identify if there is an established duty under Robinson [2018].
• If novel, apply the Caparo [1990] three-stage test (Foreseeability: Kent; Proximity: Bourhill / McLoughlin; Fair, just & reasonable: Hill).

Step 2: Breach of Duty
• State the objective standard of the reasonable person (Blyth [1856]).
• Identify defendant characteristics (Learner: Nettleship; Professional: Bolam / Montgomery; Child: Mullin / Orchard).
• Apply risk factors (Likelihood: Bolton / Miller; Seriousness: Paris; Cost of precautions: Latimer; Social utility: Watt / Compensation Act 2006 / SARAH Act 2015).

Step 3: Damage
• Factual Causation: Apply the "But for" test (Barnett [1969]). Check for any novus actus interveniens (Knightley, McKew).
• Remoteness: Was the kind of harm reasonably foreseeable (The Wagon Mound [1961])? Note that precise manner/extent need not be foreseen (Hughes [1963], Bradford [1967]). Apply the Thin Skull Rule if applicable (Smith [1962]).

Step 4: Defences
• Contributory Negligence: Law Reform (Contributory Negligence) Act 1945 (Froom, Owens) — partial defence.
• Consent (Volenti): (Morris, Stermer) — complete defence (remember s.149 Road Traffic Act 1988 restriction).

Step 5: Remedies
• Outline compensatory damages (Special damages vs General damages for PSLA / future loss). Mention duty to mitigate.

Quick check

Can you answer these now?

Open each question to check the key ideas from this chapter.

What three core elements must a claimant prove to establish liability in negligence?

The claimant must prove on the balance of probabilities: (1) a duty of care was owed, (2) that duty was breached, and (3) the breach caused actionable damage (factual causation and remoteness).

How do the courts establish a duty of care in ordinary versus novel situations under Robinson (2018)?

Under Robinson [2018], courts first look to existing precedent or established duties; the three-stage Caparo test is reserved strictly for genuinely novel situations.

What are the three stages of the Caparo test for novel duties of care?

The three stages from Caparo v Dickman [1990] are: (1) reasonable foreseeability of harm, (2) proximity of relationship, and (3) whether it is fair, just, and reasonable to impose a duty.

How is the basic standard of care defined in negligence?

It is defined objectively in Blyth v Birmingham Waterworks Co [1856] as doing something a reasonable person would not do, or failing to do something a reasonable person would do.

How does the law adjust the standard of care for learners, professionals, and children?

Learners are judged against a competent, qualified person (Nettleship); professionals against a competent professional body (Bolam / Montgomery); and children against a reasonable child of their exact age (Mullin).

What risk factors do courts balance to decide if the defendant met the standard of care?

Courts balance the likelihood of harm (Bolton / Miller), gravity/seriousness of harm (Paris), cost/practicality of precautions (Latimer), and social utility (Watt; SARAH Act 2015).

How is factual causation established in negligence, and how can the chain of causation be broken?

Factual causation is proved using the 'but for' test (Barnett [1969]); the chain can be broken by a novus actus interveniens (intervening third-party act, claimant act, or natural event).

What is the test for remoteness of damage in negligence?

Under The Wagon Mound (No. 1) [1961], the type or kind of damage must be reasonably foreseeable at the time of the breach.

What is the 'thin skull' (eggshell skull) rule?

The defendant must 'take the claimant as they find them', meaning they are liable for the full extent of injuries even if exacerbated by a pre-existing condition (Smith v Leech Brain [1962]).

How does the partial defence of contributory negligence operate?

Under the Law Reform (Contributory Negligence) Act 1945, damages are reduced proportionately if the claimant's own lack of care contributed to their injury (e.g. Froom v Butcher).

What elements must the defendant establish for the defence of consent (volenti non fit injuria)?

The defendant must prove the claimant had full knowledge of the specific nature of the risk and freely and voluntarily agreed to run that risk (Morris v Murray).

What is the distinction between special and general damages in tort remedies?

Special damages cover precisely calculable financial losses up to the trial date, whereas general damages cover non-pecuniary losses (PSLA) and future unquantified financial losses.

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