• In order for a tort of negligence to be made out the plaintiff must prove 4 elements.
• Each case is different and there are often exceptions or fine distinctions that depart from the general rule. It is always recommended to seek legal advice specific to your situation. You can use our free Find a Lawyer directory to contact a lawyer near you.

A) The defendant had a duty of care.

• A duty of care is a legal obligation imposed on an individual or entity such as a company. It requires you to observe a reasonable standard of care when doing anything that could foreseeably harm anyone else.
• There are some relationships where an automatic duty of care is owed. This includes relationships such as teacher and student or an employer and employee.

B) The duty of care was breached.

• The defendant must have failed to conform to the required standard of care. To determine whether the duty of care has been breached the courts usually look at:
  • the probability of harm occurring in the particular circumstances;
  • the likely seriousness of harm;
  • the level of difficulty of taking precautions against the harm; and
  • any other responsibilities that conflict with taking precautions.

C) There was harm caused to the plaintiff.

• There must have been harm caused to the plaintiff and that harm must be either physical, financial or legal. If no harm was suffered the plaintiff cannot sue for damages.

D) The breach must have caused the harm.

• The test for causation in negligence is sometimes called the ‘but for’ test. The plaintiff will need to prove that ‘but for’ the defendant’s negligence the particular injury suffered would not have happened.
• Another way of saying this is that there must be a reasonably proximate (close) connection between the defendant’s conduct and the plaintiff’s injury. In tort law this is referred to the principle of ‘remoteness of damage’. The test that the court will use to assess whether the breach caused the harm is called the 'reasonable foreesability' test.
• It is not enough to suggest that the defendant’s breach caused harm to the plaintiff. Rather it must be proved that the harm caused was reasonably foreseeable by the defendant and not too remote.
• If you suffer harm as the result of a tort but the particular type of harm you have suffered is not a foreseeable consequence of the tort or there is some other factor which could have caused the same harm even if the defendant had not been negligent then you may not be able to satisfy this element.