Three Elements of Negligence: Duty, Breach, Damage

The three elements of negligence are a duty of care, a breach of that duty, and damage caused by the breach. A claimant generally needs to establish all three to succeed in a negligence claim.

Duty of care

A duty of care is a legal obligation to take reasonable care to avoid harming someone. For example, a driver owes other road users a duty to drive with reasonable care. In an exam problem, first identify who may owe the duty and to whom.

Breach of duty

A breach happens when the defendant falls below the standard of care expected in the circumstances. The usual question is whether a reasonable person in the defendant’s position would have acted differently. Driving while looking at a phone, for example, may be a breach of a driver’s duty. A duty alone is not enough: you must explain what the defendant did or failed to do that made their conduct unreasonable.

Damage

The claimant must have suffered legally recognised harm, such as a physical injury or damage to property. They must also show that the breach caused that harm and that the harm was not too remote. In other words, it is not enough to show that the defendant was careless and that the claimant was injured: the two must be connected.

For example, suppose a driver looks at their phone, hits a cyclist and breaks the cyclist’s arm. The driver owes the cyclist a duty of care. Looking at the phone may breach that duty. The broken arm is damage, and the collision links that damage to the breach.

Common exam mistake: treating damage as just proof that someone was hurt. Explain how the defendant’s breach caused the particular harm claimed.