Essential elements in establishing tort liability

The basis of the tort law is the fact that in order for a claim to be a successful one, the claimant will need to show that the defendant owed a duty of care to the claimant, that this duty of care was breached and that such breach of duty caused the claimant a loss or damage. These elements are essential in establishing liability in the present case.

Duty of care requires the claimant to be able to show that he was owed duty of care by the defendant. Most of the known duties of care have already been recognised by the courts, and are known as established duties of care. However, in cases where such duty has not been previously established, the courts will consider and apply the tests set out in Donoghue v Stevenson [1932] AC 562 and the re-defined principle set out in Caparo Industries plc v Dickman [1990] 2 AC 605. Donoghue v Stevenson established the "neighbour principle" which is used to determine whether or not the defendant owes a duty of care. The application of this test is based on whether or not a particular situation may be construed as one requiring a duty of care. Caparo v Dickman provided a clearer application of the neighbour principle. It defined the principle as requiring three elements in establishing duty of care: reasonable foresight of harm; sufficient proximity of relationship; and that it needs to be fair, just and reasonable to impose a duty. Caparo test will only be applied in situations where it may not be clear whether there is an established duty of care.

The facts of the present case deal with the road accident, and as the courts have already in the past recognised that all road users have a duty of care to all other road users, this is an established duty of care. Therefore, both Alex and Ben will be able to show that they were both owed a duty of care by Charlie, who had a duty of care towards all other road users. However, Ben was also owed a duty of care by Alex. As his passenger, Ben will be able to show that Alex owed him such duty of care.

Breach of duty of care

Now that it has been established that the duty of care exists, both Alex and Ben would need to establish that such duty had been breached.

In order to determine whether the breach of duty of care exists, the courts will apply a two-part test. Firstly, the court will consider how the defendant should have behaved in that particular situation, and, secondly, whether the defendant’s behaviour fulfilled the required standard of care. In the case of Blyth v Birmingham Waterworks [1856] 11 Exch 781 it was established that the defendant must meet the standard of "the reasonable person". This is an objective test that questions what a reasonable person would have done in that particular situation.

From the facts of the present case, it is clear that Charlie breached his duty of care towards both Alex and Ben by falling asleep at his vehicle. Charlie’s act was not necessarily a deliberate one, however, through application of “the reasonable person" test, it could be argued that a reasonable person would have foreseen that driving while tired could cause an accident and endanger other road users. Alex’s breach of duty of care owed to Ben occurred while Alex was riding his motorcycle over the speed limit. The court might find, through the application of the test that a reasonable person would have been able to foresee that driving over the speed limit could endanger other road users.

Loss or damages incurred as a result of the breach of duty of care

Any damages suffered by the claimant need to be a direct result of the breach of duty of care. If the defendant's breach of duty has caused the loss to the claimant, then the causation is present. The principle of causation was considered in the case of Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where it was held that although the defendant had breached a duty of care, this breach had not caused the death of the deceased. In order to establish whether causation is present in the case, the courts will apply the "but for" test. This test asks "but for the defendant's breach of duty, would the harm to the claimant have occurred?". If the answer is yes, then the claimant has failed to establish causation. However, if the answer is no then causation is satisfied.

Alex’s loss amounted to injuries, loss of 2 weeks’ wages and a damaged motorcycle. His losses and damages are a direct result of Charlie’s breach of duty of care. Through the application of the “but for" test, it can be concluded that had the defendant not breached his duty of care, Alex would not have crashed and would not have incurred injuries and losses.

Ben’s injuries were more severe, and as a result of these injuries he suffered further complications which resulted in leg amputation. In his case, causation is established once it has been shown that had both of the defendants not breached their duty of care, Ben would not have suffered injuries. The difficulty with Ben’s case lies in the fact that there are two defendants and it might be difficult to establish whose breach of duty of care was the actual cause of harm. However, the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 established that where there is more than one possible cause of the injury to the claimant, causation can be established if it can be shown that the defendant's action is the likely cause of the harm. This case established that it is enough to show that the defendant's negligence “materially contributed to the harm" to the claimant. McGhee v National Coal Board [1973] 1 WLR 1 further modified the "but for" test by adding that the claimant only needs to establish the defendant's negligence by proving that the defendant “materially contributed to the risk of harm" to the claimant. Following on from the principles set out in these two cases, Ben would be able to show that his injuries are a result of breaches of duties by both defendants, and whether one defendant was more culpable than the other will not be relevant. The case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 established the commonly applied test of remoteness which determines whether the damages suffered by the claimant are too remote. It considers whether the damage suffered is of such kind that the reasonable person would have foreseen it. The extent of the injury, consequent infection to Ben’s leg and the amputation, could be considered by the reasonable person as foreseeable injuries. It will not be considered as too remote by the courts and furthermore it will not be considered as a new or an intervening act, but rather a continuation of previous act.


Charlie could, as a defendant in the case, claim a defence of contributory negligence in order to reduce the costs. Contributory negligence requires the defendant to prove that the claimant was careless, and that such carelessness has caused or contributed to the claimant's damage. For contributory negligence to apply, claimant's carelessness must have contributed to his loss, but it need not have contributed to the accident. Since Alex was riding his bike over the speed limit, it could be shown that he was contributory negligent. Charlie could argue that Alex should have foreseen that riding a motorcycle over the speed limit could lead to an accident. Furthermore, both Alex and Charlie could attempt to apply the defence of contributory negligence against Ben, as Ben failed to wear a crash helmet. However, both defendants would need to show that by not wearing a helmet, Ben had contributed to his injuries. Since Ben’s injuries were to his leg, contributory negligence might not be a successful defence.

Alex could also claim that Ben had consented to riding on his motorcycle without the helmet. However, in order for this to be a successful defence, Alex would need to show that Ben had the knowledge and was fully aware of potential risks of riding on the motorcycle. Consent as a defence is not readily available, as contributory negligence is in most cases more appropriate defence.


Alex will most likely be able to claim pecuniary loss, which would include any loss that can be expressed in the monetary value. He would therefore be able to claim for loss of wages and loss of the motorcycle. As the “egg-shell skull" rule, which establishes that the defendant must take his victim as he finds him, extends to include any loss of earnings caused by the injuries, Charlie would be liable for payment of 2 weeks’ wages that Alex lost. Furthermore, since Alex’s motorcycle has been damaged beyond repair, Charlie would be liable for a replacement of the motorcycle. If the court finds that Alex was contributory negligent, a certain percentage will be deducted from his award.

Ben could claim for both pecuniary and non-pecuniary loss. The pecuniary loss he suffered is evident in the £10,000 he had to spend in order to adapt his home. Non-pecuniary loss would include pain and suffering as well as loss of amenity. For his physical injuries, the court would apply a subjective test in order to establish the extent of his physical injuries as well as pain and suffering and mental anguish that he is now unable to walk and is confined to a wheelchair. Since Ben has retired, he will not be able to claim for any future loss of earnings, however when considering the award, the courts will also consider the quality of Ben’s life before the accident. Since Ben’s hobbies included physical activities, it could be argued that the court, in applying the objective test, would award him a higher amount realising that his loss of leg will have a devastating effect on the quality of his life.