Nature of liability in negligence — common mistakes

In an exam, clearly distinguish between the three essential elements of the tort of negligence (Duty, Breach, Causation) and the three-part test from Caparo which is used to establish the first of those elements (Duty of Care) in novel situations. Do not confuse the two sets of three.

No. While carelessness is a part of it, legal negligence is much more specific. To be liable, a person must not only have been careless (breached their duty) but they must also have owed a pre-existing legal duty of care to the claimant, and their carelessness must have caused a type of damage that is recognised by the law. Simply being careless without causing harm, or causing harm to someone you had no duty towards, is not legal negligence.

Not automatically. 'Fault' in law relates to the breach of duty element. A claimant must still prove the other two essential elements of the tort. They must first establish that the defendant owed them a specific duty of care in the first place. Then, after proving fault (breach), they must also prove that this specific breach caused their loss (causation) and that the loss was not too remote. Fault is necessary, but not sufficient on its own.

The 'fair, just and reasonable' element acts as a crucial policy control for the courts. It allows them to consider the wider implications of imposing a duty of care. For example, they might decide against imposing a duty on public bodies like the police or fire service in certain operational situations, fearing it could lead to defensive practices and a 'flood' of litigation (the 'floodgates' argument). It allows judges to step back and ask whether, as a matter of public policy, the law should recognise a duty in this new type of situation, even if harm was foreseeable.