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Legal Reasoning · Micro-Test

Negligence in the Law of Torts

Negligence sounds like common sense until CLAT forces you to separate a careless act from an act that actually caused the harm the claimant suffered.

10 questions · 5 minutes · instant scoring

What this topic actually tests

Negligence, as an independent tort, requires the claimant to establish four elements: a duty of care owed by the defendant to the claimant, breach of that duty by falling below the required standard, causation linking the breach to the claimant's damage, and actual damage suffered. The existence of a duty of care is typically tested through the 'neighbour principle,' famously articulated in Donoghue v Stevenson, which holds that one must take reasonable care to avoid acts or omissions that one can reasonably foresee would injure persons closely and directly affected by the act - one's 'neighbours' in law. The standard of care expected is that of a reasonable, prudent person in the defendant's position; for professionals such as doctors, the standard is generally that of an ordinarily competent member of that profession exercising ordinary skill, not the highest possible skill, and a professional is not negligent merely because a different, equally competent professional would have acted differently. Causation has two components: factual causation, commonly tested using the 'but for' test (would the damage have occurred but for the defendant's breach), and legal causation, which asks whether the damage was a reasonably foreseeable consequence of the breach or too remote. Even where duty, breach, and causation are shown, damages may be reduced where the claimant's own carelessness contributed to their injury - the doctrine of contributory negligence - though this reduces rather than extinguishes the claim in most modern applications. A special evidentiary doctrine, res ipsa loquitur ('the thing speaks for itself'), applies where an accident is of a kind that ordinarily would not happen without negligence, and the instrumentality causing harm was under the defendant's exclusive control; in such cases, the burden effectively shifts to the defendant to explain how the accident occurred without negligence on their part, rather than requiring the claimant to prove the specific act of carelessness. CLAT typically frames negligence questions as principle-fact pattern pairs testing whether all four elements are made out, or whether a recognised defence such as contributory negligence or an intervening act applies.

The common trap on this topic

A frequent error is stopping the analysis once breach of duty is shown, without separately verifying causation - a defendant may have acted carelessly in some general sense, yet that carelessness might not be what actually caused the claimant's specific injury, or the injury might be too remote a consequence of the breach to be legally attributable to it. Students also misuse res ipsa loquitur, treating it as an automatic finding of liability rather than what it actually is: a rebuttable evidentiary presumption that shifts the burden onto the defendant to offer an explanation consistent with the absence of negligence. A third recurring trap is applying a uniform 'reasonable person' standard to professionals, when the law in fact applies a standard calibrated to the ordinarily competent member of that profession - meaning a professional is not negligent simply because their approach differs from another professional's equally acceptable approach, only if it falls below what a reasonably competent member of that profession would have done.

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Principle: A manufacturer owes a duty of care to the ultimate consumer of its product where the product is meant to reach the consumer in the form in which it left the manufacturer, without any reasonable possibility of intermediate examination, and the manufacturer knows that the absence of reasonable care in preparation will result in injury to the consumer's health. Facts: A beverage company bottles a soft drink that, unknown to anyone, contains a contaminant introduced during manufacturing. The sealed bottle passes through a distributor and retailer without being opened, and a consumer who drinks it falls seriously ill.
Q1.

Does the beverage company owe a duty of care to the consumer despite there being no direct contractual relationship between them?

Principle: A professional is judged against the standard of an ordinarily competent and reasonably skilled member of that profession; a professional is not negligent merely because another equally competent professional might have adopted a different, also acceptable, approach. Facts: A surgeon chooses one of two medically accepted surgical techniques to treat a patient's condition. The chosen technique carries a small, recognised risk of complication, which materialises despite the surgeon following the recognised procedure competently and without error.
Q2.

Is the surgeon liable in negligence?

Principle: Res ipsa loquitur applies where the accident is of a kind that ordinarily does not happen without negligence, and the thing causing the harm was under the exclusive control of the defendant; in such cases, the burden shifts to the defendant to show the accident occurred without any negligence on their part. Facts: A heavy wooden barrel stored inside a warehouse suddenly falls out of a second-floor window and strikes a pedestrian walking on the public pavement below. The warehouse and its contents are under the exclusive control of the warehouse operator, and no other explanation for the fall is apparent.
Q3.

What is the likely effect of res ipsa loquitur in this scenario?

Principle: Where a claimant's own lack of reasonable care for their own safety contributes to the injury they suffer, the doctrine of contributory negligence typically results in a reduction of damages in proportion to the claimant's own fault, rather than a complete bar to recovery. Facts: A pedestrian crosses a busy road at a point without a designated crossing, without checking for oncoming traffic. A car being driven well above the speed limit strikes the pedestrian, who suffers injuries; the driver's excessive speed is found to have contributed significantly to the severity of the accident.
Q4.

What is the most likely outcome regarding the pedestrian's claim against the driver?

Principle: A defendant is liable only for damage that is a reasonably foreseeable consequence of their breach of duty; damage that is too remote, arising from an unforeseeable and unusual chain of events, will not be attributed to the defendant even where their breach was a factual cause of it. Facts: A construction company negligently leaves an uncovered pit on a public footpath. A pedestrian trips into the pit and, while being carried to a nearby clinic for treatment of a minor sprain, the clinic building coincidentally catches fire due to an unrelated electrical fault, causing the pedestrian severe burn injuries.
Q5.

Is the construction company liable for the pedestrian's severe burn injuries suffered in the unrelated clinic fire?

Principle: A person who, through their own negligence, creates a situation of danger owes a duty of care not only to those directly endangered but also to a rescuer who reasonably intervenes to assist, since the possibility of rescue is a foreseeable consequence of creating peril. Facts: A driver negligently causes their vehicle to overturn on a highway and catch fire. A bystander rushes to pull the trapped driver free and, in doing so, suffers burn injuries.
Q6.

Can the bystander claim damages from the negligent driver for the burn injuries sustained during the rescue?

Principle: An occupier of premises owes a higher duty of care to lawful visitors, who must be kept reasonably safe for the purposes for which they are invited, than to trespassers, to whom the occupier generally owes only a duty not to intentionally or recklessly cause harm. Facts: A shopping mall fails to fix a broken step for weeks despite complaints. A customer who is lawfully shopping in the mall trips on the broken step and is injured.
Q7.

Is the mall likely liable to the customer under occupier's liability principles?

Principle: The standard of care expected of a child is that of a reasonably careful child of similar age, not the standard expected of a reasonably prudent adult, in assessing whether the child was contributorily negligent. Facts: A 7-year-old child, while playing near a construction site left insecurely fenced, wanders in and is injured by unsecured equipment. The construction company argues the child was contributorily negligent for entering a fenced area.
Q8.

How should the child's conduct be assessed for contributory negligence?

Principle: An employer is vicariously liable for the negligent acts of an employee committed in the course of employment, even though the employer did not personally authorise the specific negligent act, provided it occurred within the scope of the employee's duties. Facts: A delivery company's driver, while making deliveries during work hours and following the assigned route, negligently runs a red light and collides with another vehicle, injuring its driver.
Q9.

Can the injured driver hold the delivery company vicariously liable for its employee's negligence?

Principle: Courts have historically limited the duty of care owed for purely psychiatric injury (nervous shock) to those who have a sufficiently close relationship with the person endangered and who directly perceive the traumatic event or its immediate aftermath, rather than extending it to all persons who merely learn of an accident. Facts: A person suffers a severe psychiatric breakdown purely after hearing a secondhand account, three days later, from a distant acquaintance, that a stranger had been badly injured in a road accident elsewhere in the city.
Q10.

Is the person who suffered the psychiatric breakdown likely to succeed in a negligence claim against the driver who caused the road accident?

FAQ

What are the four elements a claimant must prove to succeed in a negligence claim?

The claimant must prove that the defendant owed them a duty of care, that the defendant breached the required standard of care, that this breach caused the claimant's damage, and that actual, legally recognised damage resulted.

Does res ipsa loquitur automatically make the defendant liable?

No, it does not automatically establish liability. It is an evidentiary doctrine that shifts the burden onto the defendant to explain how the accident could have occurred without negligence, once the claimant shows the accident is of a type that ordinarily would not happen without carelessness and the cause was within the defendant's exclusive control.

If a claimant was partly careless themselves, can they still recover damages?

Yes, under the doctrine of contributory negligence, a claimant's own lack of care in contributing to their injury typically reduces the damages recoverable in proportion to their fault, rather than barring the claim outright.

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