Elements of the Negligence Inquiry

Question 1

Element 1: Duty in law

Answer 1

Issue: is there (or should there be) a rule of law that either allows or bars recovery in this category of case?

Question 2

Element 2: fault (‘breach of duty’)

Answer 2

Issue: did the conduct of the D create unreasonable risks of injury to others?

Question 3

Element 3: damage

Answer 3

Issue: has the C suffered a form of harm which is actionable in negligence?

Question 4

Element 4: factual causation

Answer 4

Issue: was there a historical connection between the negligent conduct of the D and the damage suffered by the C?

Question 5

Element 5: legal causation

Answer 5

Issue: was there an intervening act or omission of the C or a third party which ‘broke the chain of causation’ between the D’s negligent conduct and the C’s damage?

Question 6

Element 6: remoteness of damage/duty in fact

Answer 6

Issue: was the damage suffered by C the materialisation of one of the risks which made D’s conduct negligent?

Question 7

Defence 1: volenti (consent)

Answer 7

Issue: did C freely and knowingly consent to D’s negligent conduct?

Question 8

Defence 2: exclusion of liability

Answer 8

Issue: has C waived the right to sue in the event that she suffers damage as a result of the D’s negligence?

Question 9

Defence 3: illegality

Answer 9

Issue: is C founding her action on her own criminal conduct, or did she engage in serious criminal activity which was inextricably connected to the alleged tort?

Question 10

Defence 4 (partial defence): contributory negligence

Answer 10

Issue: was C partly to blame for the injury in respect of which she is bringing her claim?