Negligence—key elements to establish a negligence claim
Produced in partnership with Professor Richard A Buckley
Negligence—key elements to establish a negligence claim

The following Dispute Resolution guidance note Produced in partnership with Professor Richard A Buckley provides comprehensive and up to date legal information covering:

  • Negligence—key elements to establish a negligence claim
  • Negligence—what are the key ingredients to establish a claim in negligence?
  • Negligence—a duty of care is required
  • A breach of the duty of care is required to establish negligence
  • What damage has been caused by the negligent breach of duty?
  • Foreseeability in negligence—the damage caused must not be too remote
  • Burden of proof and res ipsa loquitor
  • Negligence—practical considerations

Negligence—what are the key ingredients to establish a claim in negligence?

For liability in negligence to be founded, four key ingredients must be present:

  1. duty of care

  2. breach of that duty

  3. damage (which is caused by the breach)

  4. foreseeability of such damage

The various elements of each of the tests overlap and their separation can be artificial upon close analysis in certain circumstances. However, considering each of the items in turn is an essential guide to testing whether an actionable claim in negligence has arisen.

Negligence—a duty of care is required

For negligence to be established, the defendant must owe the claimant a duty to take reasonable care not to inflict damage on him or her. The crux of the tort is the careless infliction of harm and so intentionally inflicted harm will never give rise to a claim in negligence.

The notion that there might be a general duty to take care of others was first considered in Donoghue v Stevenson. In that case, a woman was given a bottle of ginger beer by a friend who had purchased it from a shop. The shopkeeper had, in turn, bought it from a manufacturer who had, through its carelessness, permitted a snail to be left in the bottle. The lady claimed that drinking from the bottle containing the decomposing snail