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Behind the terms: negligence — Articles

Negligence is the most litigated area of English tort law. From road accidents and clinical negligence to solicitors' errors and product liability, negligence underpins a vast range of civil claims. Yet the word is often misused — calling something "negligent" in everyday speech does not mean it meets the legal standard. This article breaks down what negligence actually requires, using the framework developed by the courts and now taught in every law school.

The foundations: Donoghue v Stevenson

Modern negligence law begins with Donoghue v Stevenson [1932] AC 562, in which the House of Lords held that a manufacturer of ginger beer owed a duty of care to the ultimate consumer — even though there was no contract between them. Lord Atkin's "neighbour principle" — you must take reasonable care to avoid acts or omissions you can reasonably foresee would be likely to injure your neighbour (i.e. someone closely and directly affected by your act) — laid the groundwork for everything that followed. See also the negligence glossary entry for the formal definition.

The Caparo three-stage test

The modern framework for establishing a duty of care comes from Caparo Industries plc v Dickman [1990] 2 AC 605. For a duty of care to exist, three conditions must be met: (1) the loss was reasonably foreseeable; (2) there is sufficient proximity between claimant and defendant; and (3) it is fair, just and reasonable to impose a duty. All three must be satisfied. In practice, Caparo is most relevant in novel duty situations — established categories (road accidents, employers to employees, manufacturers to consumers) are already recognised without a fresh Caparo analysis each time.

Standard of care: the reasonable person test

Once a duty exists, the defendant must not fall below the standard of the "reasonable person" in the circumstances. This is an objective test: the question is not whether the defendant did their best, but whether they met the standard of an ordinarily competent person performing that activity. A surgeon is judged against the standard of a reasonable surgeon; a lorry driver against a reasonable lorry driver; a solicitor against a reasonably competent solicitor. The test was stated in Blyth v Birmingham Waterworks Co (1856): negligence is "doing something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do, or failing to do something which a prudent man would do."

Causation and remoteness

Even if duty and breach are established, the claimant must prove the breach caused the loss. The basic test is "but for" causation: but for the defendant's breach, would the claimant have suffered the loss? If yes, the breach was not causative. For complex multi-cause cases (particularly in clinical negligence), the law has developed more sophisticated tests — see Fairchild v Glenhaven [2002] for material contribution to risk in mesothelioma cases. The loss must also not be too "remote": the type of damage must have been a reasonably foreseeable consequence of the breach (The Wagon Mound (No 1) [1961]). See the damages glossary entry and the tort vs contract article for how negligence damages are calculated and compared with contractual remedies.

Contributory negligence

Under the Law Reform (Contributory Negligence) Act 1945, if the claimant's own failure to take reasonable care for their own safety contributed to the loss, damages are reduced in proportion to the claimant's share of responsibility. A pedestrian who jaywalks and is hit by a car driving negligently may be found 20–30% contributorily negligent. A claimant who fails to wear a seatbelt typically sees damages reduced by 25% (Froom v Butcher [1976]).

Limitation periods

The standard six-year period under s.2 of the Limitation Act 1980 applies to most negligence claims. Personal injury claims have a three-year period from the date of injury or knowledge (s.11), with the court having discretion to extend under s.33. Latent damage to property runs three years from discoverability (s.14A) subject to a 15-year long-stop. See the limitation periods guide for a full table by claim type.

This article is for general information only and is not legal advice. Always check the official source and consult a qualified lawyer for your situation.