Evaluation of Negligence

• Advantages of the Duty of Care

  • The purpose of the duty of care is to allow liability to be imposed
  • It establishes who should be protected from negligently inflicted harm
  • Deciding whether this duty exists is an effective way of filtering negligence claims before other issues are considered
  • The law does not impose a duty to prevent foreseeable harm
  • The decision in Robinson v CC of West Yorkshire (2018) clarified when the Caparo test should be used
  • Many different factors determine whether a breach was reasonable
  • Allowing the D's characteristics to be considered means the law can be applied fairly
  • This also allowed more vulnerable claimants greater protections
  • The size of the risk and the practicality of eliminating it is a factor to consider
  • There is now a greater emphasis on health and safety, working sites have more responsibility to protect passers-by from injury
  • In recent years employers have been expected to take greater precautions to protect their workers
  • It is fair that there should be no liability if a risk has to be taken because the benefit to society outweigh the potential harm
  • It is fair that a D is judged against common practice and knowledge of the time, especially in medical or scientific areas
• Disadvantages of the Duty of Care

  • The 3-stage Caparo test was criticised for lacking clarity, making it difficult for lawyers to advise their client
  • The proximity test has never been fully established to show exactly who falls within a proximal relationship
  • There is an overlap between the tests for reasonable foreseeability and remoteness of damage
  • The fair, just and reasonable test is vague, and it cannot be predicted whether a judge will determine it satisfied or not
  • What is reasonable is an objective question which could operate unfairly against the D
  • A claim may be defeated if a D's actions are considered reasonable, even if others in the profession do not agree
• Advantages of Causation


  • The principles of factual causation are generally fair as the 'but for' test allows all claimants to be treated the same way
  • In most cases it can also be applied in a straightforward manner
  • Judges will ignore problems applying the 'but for' test and base their decision on policy reasons instead so that they can give a just result
  • If the C's actions are reasonable, but they took a certain risk, then it must be considered whether the D should be liable for any injury associated with that risk
  • The courts have developed tests as to whether D made a 'material contribution' to provide justice
• Disadvantages of Causation


  • The test is only appropriate if there is one D
  • If there are many D's and more than one cause of injury/damage, the C may not be able to prove which D was negligent
  • Liability will not be imposed because the D's negligence does not cause the injury/damage, something, or someone else does
  • The rules on remoteness can be unfair to a C as they can limit the D's liability
  • The approach taken by the courts when deciding what type of damage is foreseeable may not be fair