Liability for Physical Injury to People and Damage to Property (AQA A-Level Law): Revision Notes
Liability for Physical Injury to People and Damage to Property
This note covers the essential elements of establishing negligence claims involving physical injury to people and damage to property. To succeed in a negligence claim, a claimant must prove three key elements: that the defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused damage that was not too remote.
Understanding these three elements is crucial: duty, breach, and causation. Each must be proved independently. If any one element fails, the entire negligence claim will fail, regardless of how strong the other elements are.
Duty of care
A duty of care is the legal obligation that one person owes to another to take reasonable care to avoid causing harm. Before liability can be established, it must be shown that the defendant owed this duty to the claimant.
When a duty of care already exists
Many relationships automatically give rise to a duty of care because they have been well-established through previous cases. These include:
- Road users to other road users
- Teachers to their students
- Doctors to their patients
- Employers to their employees
When such established relationships exist, there is no need to apply any test to determine whether a duty is owed – the law already recognizes that duty.
Establishing a new duty of care
When no established duty exists, the courts must decide whether to recognize a new duty of care. Two key tests have developed for this purpose.
The neighbour principle
The original test for establishing a duty of care comes from the landmark case of Donoghue v Stevenson (1932), where a woman found a decomposed snail in her bottle of ginger beer. Lord Atkin established the neighbour principle, which states:
You must take reasonable care to avoid acts or omissions that you can reasonably foresee are likely to injure your neighbour. Your neighbour is defined as anyone so closely and directly affected by your actions that you ought reasonably to have them in your contemplation when directing your mind to the acts or omissions in question.
This principle introduced the concept of reasonable foreseeability and proximity to the law of negligence.
The Caparo test
The modern approach comes from Caparo v Dickman (1990), a case involving misvalued shares. This case updated and refined the neighbour principle by introducing a three-part test:
The Caparo Three-Part Test:
1. Reasonable foreseeability: The damage must be reasonably foreseeable to an objective bystander. This means asking whether a reasonable person in the defendant's position would have anticipated that their actions could cause harm to someone in the claimant's position.
2. Proximity: There must be a relationship of proximity between the parties. Proximity involves closeness in terms of:
- Time (temporal proximity)
- Space (physical proximity)
- Relationship (legal or relational proximity)
The claimant must demonstrate sufficient closeness to the defendant for it to be reasonable to impose a duty of care.
3. Fair, just and reasonable: It must be fair, just and reasonable to impose a duty of care in the circumstances. This is a policy-based consideration that allows courts to restrict the imposition of duties where:
- It would place an unreasonable burden on defendants, particularly public services
- It might open the floodgates to numerous claims
- There are strong policy reasons against imposing liability
When to use which test
Following the Supreme Court decision in Robinson v Chief Constable of West Yorkshire (2018), the courts have clarified that the Caparo test should only be used in novel cases where established principles do not provide an answer.
The term "established principles" means the courts will first look for analogies in existing case law to maintain coherence in the law and avoid inappropriate distinctions. Therefore, if there are sufficiently similar previous cases, the Caparo test is unnecessary – the court will simply apply the established duty from those cases.
Key cases on duty of care
Worked Example: Kent v Griffiths (2000) - Reasonable Foreseeability
Facts: An ambulance was unreasonably late in attending to a patient.
Application: The court considered whether it was reasonably foreseeable that delay would cause harm to the patient.
Outcome: The court held that it was reasonably foreseeable that a patient would suffer harm from a delayed ambulance response, establishing that the ambulance service owed a duty of care to individual patients who called for emergency assistance.
Principle: This demonstrates how the reasonable foreseeability element of the Caparo test operates in practice.
Worked Example: Jolley v Sutton LBC (2000) - Foreseeability and Children
Facts: A child was injured by an abandoned boat left in a park by the local council.
Application: The court assessed whether injury from the boat was reasonably foreseeable, particularly given children's propensity to play with unusual objects.
Outcome: The court held it was reasonably foreseeable that a child would be injured by such an attractive nuisance, even though the precise manner of injury was not foreseeable.
Principle: The courts take into account the characteristics of the potential claimant (here, a child) when assessing foreseeability.
Worked Example: Bourhill v Young (1943) - Lack of Proximity
Facts: The claimant, sometimes referred to as the 'nosy fishwife', chose to view the scene of an accident and suffered psychiatric harm.
Application: The court examined whether there was sufficient proximity between the claimant and the negligent driver.
Outcome: The court held there was no proximity between her and the negligent driver because she was not in the area of potential impact and made a voluntary decision to view the aftermath.
Principle: This shows that proximity requires more than just general presence near an incident – there must be sufficient closeness to the defendant's actions.
In contrast, McLoughlin v O'Brian (1983) shows when proximity will be established. The claimant saw the immediate aftermath of a serious accident involving her family and suffered psychiatric injury as a consequence. The court found proximity existed because she had no choice in witnessing the traumatic scene – it was thrust upon her.
Worked Example: Hill v Chief Constable of West Yorkshire (1988) - Fair, Just and Reasonable
Facts: The claimant sued the police for failing to catch a serial killer who murdered her daughter.
Application: The court considered whether it would be fair, just and reasonable to impose a duty of care on the police in crime detection and prevention.
Outcome: The court held it was not fair, just and reasonable for the police to owe a duty of care to individual members of the public in the detection and prevention of crime, as this would impose an unreasonable burden on police operations and could lead to defensive policing.
Principle: This demonstrates the policy considerations that influence the third element of the Caparo test. This principle was reaffirmed in Michael v Chief Constable of South Wales (2015).
Breach of the duty of care
Once a duty of care is established, the next question is whether the defendant breached that duty by failing to meet the required standard of care.
The reasonable person test
The standard test for breach comes from Blyth v Birmingham Water Works (1856), which defines breach as "omitting to do something a reasonable man would do, or doing something a reasonable man would not do."
This is an objective test, meaning the defendant's conduct is compared to what a hypothetical reasonable person would have done in the same circumstances. The defendant's own abilities, intelligence, or inexperience are generally irrelevant – they must still meet the objective standard.
Modifications to the standard
While the test is generally objective, the law recognizes that certain situations require an adjusted standard of care.
Professional standards
A professional will not be judged by the standard of an ordinary reasonable person, but by the standard of a reasonable person of that profession. This principle was established in Bolam v Friern Hospital Management Committee (1957), where a patient suffered serious fractures during ECT treatment when the doctor did not administer relaxant drugs.
The Bolam Test
A professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of professional opinion, even if other professionals might have acted differently.
However, this test has been modified for advice given by healthcare professionals. In Montgomery v Lanarkshire (2015), the Supreme Court held that doctors must now ensure patients are aware of material risks involved in treatment, shifting toward greater patient autonomy and informed consent.
Learner drivers
Critical Distinction: No "Learner" Exception
Importantly, the professional standard does NOT apply to learners or trainees. Nettleship v Weston (1971) established that a learner driver is judged by the standard of a competent, qualified driver, not by the standard of a reasonable learner.
Worked Example: Nettleship v Weston (1971)
Facts: A learner driver injured her instructor during a driving lesson.
Application: The question was whether the learner should be judged by the standard of a competent driver or a reasonable learner.
Outcome: The court held she was still required to meet the standard of a competent driver, despite being a learner.
Principle: This ensures that other road users receive proper protection regardless of a driver's experience level. You cannot reduce the standard of care owed to others simply because you are learning.
Children
A child defendant will be judged by the standard of a reasonable child of similar age, not by adult standards. In Mullin v Richards (1998), two 15-year-old schoolgirls were fighting with plastic rulers when one snapped, and a splinter caused one girl to lose sight in her eye. The court assessed their behavior against what would be expected of reasonable 15-year-olds, not adults.
Factors determining reasonableness
When determining whether a defendant acted as a reasonable person would have done, courts consider four key factors. These factors influence the level of care expected in the circumstances.
Degree of risk involved
The greater the risk of harm, the more precautions a reasonable person would be expected to take.
Worked Example: Bolton v Stone (1951)
Facts: A cricket club was sued after someone outside the ground was hit by a cricket ball.
Analysis of Risk: Balls had only been hit out of the ground six times in 30 years – a very low frequency of occurrence.
Outcome: The court found that because the risk was so small, a reasonable person would not have taken further precautions. The low degree of risk meant the standard required was correspondingly lower.
Principle: Where the degree of risk is minimal, less precaution is required.
Cost of precautions
A reasonable person is not expected to take precautions where the cost would be disproportionate to the risk.
Worked Example: Latimer v AEC (1952)
Facts: A worker slipped on a factory floor that had been flooded. The employer had mopped up, put down sawdust in the most used areas, and displayed warning signs.
Cost Analysis: Closing the entire factory would have been extremely costly to guard against a relatively minor residual risk.
Outcome: The court held the existing precautions were reasonable – the employer was not required to close the entire factory.
Principle: This recognizes that some level of risk is acceptable in society, and defendants should not be expected to take excessive or economically unrealistic measures.
Potential seriousness of injury
The more serious the potential consequences, the higher the standard of care required.
Worked Example: Paris v Stepney Borough Council (1951)
Facts: The claimant had only one functioning eye, and his employer knew this. When he was injured at work by a metal splinter that struck his good eye, causing complete blindness, the question was whether the employer should have provided safety goggles.
Analysis: Although goggles were not standard for workers with normal sight doing this type of work, the devastating consequences for this particular worker had to be considered.
Outcome: The court held the employer should have provided safety goggles given the known vulnerability.
Principle: When the potential consequences are particularly serious (especially when known to the defendant), a higher standard of care is required.
Importance of the activity
Some risk may be acceptable if the activity being undertaken has significant social value or importance.
Worked Example: Watt v Hertfordshire County Council (1954)
Facts: A firefighter was injured by equipment that had not been properly secured in the fire engine. This happened because the crew was rushing to save a person trapped under a vehicle at an accident scene.
Social Value: The activity involved saving life in an emergency situation – one of the highest forms of social value.
Outcome: The court held that the social importance of saving life meant that some additional risk was acceptable, and the fire service had not breached its duty of care in the circumstances.
Principle: Emergency services and others performing socially valuable tasks may need to take reasonable risks that would not be acceptable in other contexts.
Interaction of factors with the reasonable person standard
Understanding How Factors Affect the Standard
It is crucial to understand how these factors affect the standard of care. They do not change whether a duty exists, but rather they influence what the reasonable person would do in the circumstances.
For example:
- If the risk is very high, a reasonable person would take more precautions, so the defendant must also take those precautions to avoid breaching the duty
- If the cost of precautions would be enormous compared to a tiny risk, a reasonable person would not take those precautions, so the defendant is not in breach for failing to do so
Damage
Even if a duty of care exists and has been breached, the claimant cannot succeed in negligence unless they prove that the breach caused damage. Furthermore, that damage must not be too remote from the breach.
Factual causation: the 'but for' test
The first requirement is proving factual causation. The test applied is simple: would the damage have occurred "but for" the defendant's breach of duty?
Worked Example: Barnett v Chelsea Hospital (1969)
Facts: A doctor negligently failed to examine a man who had been poisoned.
Medical Evidence: Even if the doctor had examined him properly, the man would still have died because the poison acted too quickly for any treatment to succeed.
Application of 'But For' Test: "But for" the doctor's negligence, would the man have survived? Answer: No – he would have died anyway.
Outcome: Although the doctor breached his duty, he did not cause the death – it would have happened anyway. Therefore, the "but for" test was not satisfied, and the claim failed.
Principle: This test ensures that defendants are only liable for harm they actually caused, not for harm that would have occurred regardless of their actions.
Legal causation: remoteness of damage
Even when factual causation is established, the damage must not be too remote from the breach. The test for remoteness focuses on foreseeability.
Worked Example: The Wagon Mound (1961)
Facts: A ship leaked oil into Sydney Harbour. The oil spread and eventually caught fire through an unusual chain of events, destroying a wharf and boats.
Foreseeability Analysis:
- Property damage from oil slick itself: Foreseeable
- Fire damage from oil on water: Not reasonably foreseeable
Outcome: The court held that while property damage from the oil slick itself was foreseeable, fire damage was not a reasonably foreseeable consequence of leaking oil into water. Therefore, the fire damage was too remote, and the defendants were not liable for it.
Principle Established: Damage must be of a reasonably foreseeable type. If a reasonable person would not have foreseen the general type of harm that occurred, the defendant is not liable for it.
Exceptions to the foreseeability rule
While the type of damage must be foreseeable, the law recognizes two important qualifications.
The precise chain of events need not be foreseeable
Worked Example: Hughes v Lord Advocate (1962)
Facts: Two boys went to explore a manhole left open by workmen who had placed paraffin lamps around it as a warning. Through a bizarre and unforeseeable chain of events, one lamp fell into the manhole, causing a violent explosion that seriously injured one boy.
Analysis:
- Type of harm: Burns from paraffin lamps – Foreseeable
- Specific mechanism: Violent explosion – Not foreseeable
Outcome: The court held that although the specific mechanism of injury (the explosion) was not foreseeable, burns from the paraffin lamps were a foreseeable type of harm. Therefore, the defendants were liable even though the precise way the injury occurred was not reasonably foreseeable.
Principle: The law does not require defendants to foresee the exact sequence of events, only the general type of harm.
The extent of damage need not be foreseeable: the thin skull rule
The Thin Skull Rule (Eggshell Skull Rule)
Once defendants are liable for some harm, they must take their victim as they find them, including any pre-existing vulnerabilities that make the harm more serious than expected.
This means: if you commit a foreseeable type of negligence, you are liable for all the consequences, even if those consequences are more severe than anyone could have anticipated due to the victim's particular vulnerability.
Worked Example: Smith v Leech Brain (1962)
Facts: As a result of the defendant's negligence, the claimant suffered a burn to his lip. Unknown to anyone, his lip contained pre-cancerous cells. The burn triggered these cells to develop into cancer, and he died three years later.
Foreseeability Analysis:
- Initial burn: Foreseeable
- Death from cancer: Not foreseeable
Application of Thin Skull Rule: The initial burn was a foreseeable type of harm. The defendant must therefore take the victim as they find them, including the pre-cancerous cells.
Outcome: The defendants were liable for the death, even though it was far more serious than anyone could have anticipated.
Principle: The extent of the damage need not be foreseeable – only the type of damage.
Intervening acts
The chain of causation can be broken by an intervening act (novus actus interveniens) that is so significant that it becomes the true cause of the damage. However, the courts will generally only find an intervening act breaks the chain if it is:
- Unforeseeable and unreasonable, AND
- The main cause of the damage rather than the defendant's breach
Key Points to Remember:
-
Duty of care is established using either the neighbour principle from Donoghue v Stevenson or the three-part Caparo test (foreseeable, proximity, fair/just/reasonable), depending on whether the case involves an established or novel situation.
-
Breach is assessed by the objective reasonable person test, modified for professionals (Bolam standard), but not for learners. Four factors affect the standard: degree of risk, cost of precautions, potential seriousness of injury, and importance of the activity.
-
Causation requires passing the "but for" test – proving the damage would not have occurred without the breach – as demonstrated in Barnett v Chelsea Hospital.
-
Remoteness requires the damage to be of a reasonably foreseeable type (The Wagon Mound), but the precise chain of events need not be foreseeable (Hughes v Lord Advocate), and the extent of damage need not be foreseeable under the thin skull rule (Smith v Leech Brain).
-
The three elements – duty, breach, and damage – must all be proved for a successful negligence claim. If any element fails, the entire claim fails.