The Tort of Negligence in Trinidad and Tobago: Elements, Proof, and Defences
To succeed in a negligence claim in Trinidad and Tobago, a claimant must prove four elements: (1) the defendant owed them a duty of care, (2) the defendant breached that duty, (3) the breach caused the damage complained of, and (4) the damage suffered was not too remote. Whether a duty of care exists is determined by the Caparo Industries plc v Dickman [1990] 2 AC 605 three-part test — foreseeability, proximity, and whether it is fair, just, and reasonable to impose a duty. The limitation period for bringing a negligence claim in T&T is four years from the date damage occurs or becomes discoverable, under Section 3 of the Limitation of Certain Actions Act, Chapter 7:09 of the Laws of Trinidad and Tobago. Failure to establish any single element is fatal to the claim.
What Is the Tort of Negligence?
Negligence is a civil wrong — a tort — that arises when one person acts carelessly in a way that causes harm to another, in circumstances where the law imposes an obligation to take care. It is not a crime, and it does not require proof of any intention to harm. The foundation of modern negligence law was laid by the House of Lords in Donoghue v Stevenson [1932] AC 562 (House of Lords), where Lord Atkin articulated the "neighbour principle": you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — that is, persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation.
T&T courts apply English common law principles in this area, as the common law of England was received into the jurisdiction and continues to develop through local judicial decisions, including decisions of the Judicial Committee of the Privy Council, which remains the apex court for Trinidad and Tobago.
1. Duty of Care — The Caparo Three-Part Test
The governing rule: A duty of care arises where (1) damage to the claimant was reasonably foreseeable, (2) there is a relationship of sufficient proximity between claimant and defendant, and (3) it is fair, just, and reasonable to impose a duty on the defendant — per Caparo Industries plc v Dickman [1990] 2 AC 605 (House of Lords).
The Three Caparo Criteria
| Criterion | Question the Court Asks |
|---|---|
| 1. Foreseeability | Was it reasonably foreseeable that the defendant's conduct could cause damage to someone in the claimant's position? |
| 2. Proximity | Was there a sufficiently close relationship between the parties — physical, circumstantial, or assumed? |
| 3. Fair, just, and reasonable | Is it fair, just, and reasonable in all the circumstances to impose a duty on the defendant? |
All three criteria must be satisfied. Even where damage is foreseeable and the parties are proximate, a court may decline to impose a duty where policy considerations make it unjust to do so — for example, to avoid placing an undue burden on public bodies, or to prevent indeterminate liability to an unlimited class of claimants.
Established Duty Relationships in T&T
Certain duty relationships are so well-established that their existence is not seriously disputed:
- Road users — drivers owe a duty of care to other road users, pedestrians, and passengers
- Employers — an employer owes a non-delegable duty to take reasonable care for the health and safety of employees
- Manufacturers — a manufacturer owes a duty to the ultimate consumer of a product that cannot be examined before use (Donoghue v Stevenson)
- Doctors and medical staff — a duty of care arises from the doctor-patient relationship
- Occupiers — an occupier of premises owes duties to lawful visitors (and, in limited circumstances, to trespassers)
- Teachers and schools — a duty is owed to pupils in their charge during school hours
- Solicitors — a solicitor owes a duty of care to their client, and in some circumstances to third-party beneficiaries under a will (White v Jones [1995] 2 AC 207 (House of Lords))
The Neighbour Principle as Foundation
Donoghue v Stevenson [1932] AC 562 remains the bedrock of duty of care analysis. A decomposed snail was found in a bottle of ginger beer; Mrs Donoghue, who drank it, suffered gastroenteritis. The manufacturer had no contract with her. The House of Lords held that a duty in tort nevertheless existed. The principle: you owe a duty of care to persons you ought reasonably to contemplate as being affected by your careless conduct, regardless of whether there is any contractual relationship between you.
2. Breach — The Reasonable Person Standard
The governing rule: A breach of the duty of care occurs when the defendant falls below the standard of the reasonable person in the same circumstances — a person of ordinary prudence who takes reasonable precautions against reasonably foreseeable risks of harm.
The classic formulation was given in Blyth v Birmingham Waterworks Company (1856) 11 Ex 781: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do."
The test is objective — it asks not what the actual defendant thought, felt, or intended, but what the reasonable person in the defendant's position would have done.
Factors Courts Consider in Assessing Breach
| Factor | Effect on Liability |
|---|---|
| Probability of harm | The more likely it was that someone would be hurt, the more care was required |
| Severity of harm | Graver potential consequences demand higher precautions (Paris v Stepney Borough Council [1951] AC 367) |
| Cost and practicability of precautions | A defendant is not expected to incur unreasonable expense; excessive burden reduces the standard expected |
| Social utility of the defendant's conduct | Emergency services and those performing beneficial social functions may justify some risk-taking |
| Common practice | Compliance with standard industry practice is relevant, though not conclusive |
Professional Negligence — The Bolam Standard
Where the defendant is a professional — a doctor, lawyer, engineer, accountant, or other specialist — the standard of the reasonable person is replaced by the standard of the reasonably competent professional in the same field.
The governing rule is from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (Queen's Bench Division): "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." This principle extends to all professionals: a lawyer is assessed against a reasonably competent lawyer; an engineer against a reasonably competent engineer.
An important qualification was added in Bolitho v City and Hackney Health Authority [1998] AC 232 (House of Lords): the professional practice relied upon must itself withstand logical scrutiny. A court can reject professional evidence where the opinion cannot be supported by a defensible body of reasoning.
3. Causation — Proving the Link Between Breach and Damage
The governing rule: A defendant is liable only for damage that their breach of duty actually caused. The primary test is the but-for test: but for the defendant's breach, would the claimant have suffered the damage? If the damage would have occurred regardless of the breach, causation is not established.
The leading authority is Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 (Queen's Bench Division). A casualty nurse turned away a patient who was later found to have been poisoned by arsenic. The hospital was in breach of duty by refusing to examine him. However, the claim failed on causation: even if he had been examined and treated, medical evidence showed he would have died regardless. The breach did not cause the death.
Multiple Causes and Material Contribution
Where multiple causes contribute to an indivisible injury, and the claimant cannot isolate exactly which breach caused the damage, the courts may apply the material contribution test: it is sufficient to show that the defendant's breach materially contributed to the risk or development of the harm (Bonnington Castings v Wardlaw [1956] AC 613 (House of Lords)).
Loss of Chance
In some professional negligence claims — notably claims against solicitors for procedural failures — courts have been willing to recognise a loss of chance: the claimant need not prove they would certainly have succeeded, but only that the breach deprived them of a measurable chance of a better outcome.
4. Remoteness of Damage — The Wagon Mound Test
The governing rule: A defendant is not liable for all consequences of their breach — only for damage of a type that was reasonably foreseeable at the time of the breach.
The modern remoteness test comes from Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388 (Privy Council). Oil discharged from a ship spread across Sydney Harbour. Sparks from nearby welding ignited the oil, destroying the claimants' wharf. The Privy Council held that the defendants were not liable for fire damage: while spillage of oil was foreseeable, fire damage from that oil was not reasonably foreseeable at the time. Liability attaches only to damage of a kind that was reasonably foreseeable, not merely to damage that was a direct consequence of the breach.
This replaced the older "direct consequence" rule from Re Polemis [1921] 3 KB 560, under which a defendant was liable for all direct consequences of the breach, foreseeable or not. The Wagon Mound test is now the settled law in T&T.
The Thin Skull Rule
A qualification to the remoteness principle is the thin skull rule (also called the "eggshell skull" rule): once it is established that some personal injury of the relevant type was foreseeable, the defendant must take the claimant as they find them. If the claimant has a pre-existing condition that causes their injuries to be far more severe than would ordinarily result, the defendant is liable for the full extent of that harm. A tortfeasor takes their victim as they find them — the fact that the damage is greater than was foreseeable does not limit liability, so long as some injury of the type suffered was foreseeable.
5. Defences to Negligence
Contributory Negligence
Where the claimant's own negligence contributed to their damage, the court will apportion liability and reduce the claimant's damages accordingly. This is governed by the Law Reform (Miscellaneous Provisions) Act of Trinidad and Tobago, which reflects the Law Reform (Contributory Negligence) Act 1945 (UK) as received into T&T law.
The governing rule: Where a person suffers damage as the result partly of their own fault and partly of the fault of another, a claim shall not be defeated by reason of the claimant's fault; but the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
Contributory negligence is common in road traffic accident claims (for example, failure to wear a seatbelt), and in workplace accident claims (for example, failure to use provided safety equipment).
Volenti Non Fit Injuria
This Latin maxim — "to a willing person, no injury is done" — is a complete defence. Where the claimant voluntarily assumed the risk of the harm that occurred, with full knowledge of the nature and extent of the risk, the defendant is not liable. The assumption of risk must be genuine and informed. Merely participating in a dangerous activity is not sufficient; the claimant must have agreed, expressly or by implication, to accept the legal risk — not merely the physical risk.
This defence is frequently raised, but rarely succeeds in full. In employment contexts, volenti is very difficult to establish: an employee cannot truly be said to have freely consented to a risk imposed by their employer.
Ex Turpi Causa Non Oritur Actio
This maxim — "from a dishonest cause, no action arises" — operates as a complete defence where the claimant's own illegal or seriously immoral conduct was so closely connected to the damage that it would be contrary to public policy to allow the claim. Courts apply this with care: the test is not merely that the claimant was engaged in unlawful activity, but that the illegality is sufficiently connected to the damage that allowing the claim would be an affront to the public conscience or undermine the integrity of the legal system.
6. Specialist Areas of Negligence
Professional Negligence
The Bolam standard (see Section 2 above) applies across all professions. A solicitor who fails to file proceedings within the limitation period, thereby extinguishing the client's claim, will be liable in professional negligence. An accountant who provides a negligent audit relied upon by an investor may be liable for economic loss. The key questions remain: was a duty owed? Was the professional standard breached? Did the breach cause the loss claimed?
Occupiers' Liability
An occupier of land or premises owes duties that vary with the status of the entrant. Lawful visitors — those who enter with express or implied permission — are owed a duty to take reasonable care to ensure the premises are reasonably safe for the purposes of their visit. Trespassers are owed a more limited duty: an occupier must not deliberately or recklessly cause injury to a trespasser, and in some circumstances must take reasonable steps to protect trespassers from known dangers, particularly child trespassers who may be attracted to the premises (British Railways Board v Herrington [1972] AC 877 (House of Lords)).
Psychiatric Injury and Nervous Shock
T&T courts recognise claims for psychiatric injury (formerly called "nervous shock") as actionable in negligence, subject to important control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (House of Lords), the Hillsborough stadium disaster case.
The law distinguishes between:
| Category | Who qualifies | Requirements |
|---|---|---|
| Primary victims | Those within the zone of physical danger | Foreseeability of psychiatric or physical injury is sufficient |
| Secondary victims | Those who witness injury to others | Must satisfy all three Alcock control mechanisms |
The Alcock control mechanisms for secondary victims are:
- Proximity of relationship — a close tie of love and affection to the primary victim (presumed for spouses and parents; must be proved for others)
- Proximity in time and space — present at the accident, or in its immediate aftermath
- Perception through own unaided senses — not through television broadcasts or radio
These mechanisms significantly restrict secondary victim claims and have been applied in T&T courts to limit recovery to those who satisfy all three criteria.
Pure Economic Loss and Negligent Misstatement
As a general rule, pure economic loss — financial loss not consequent upon physical injury or property damage — is not recoverable in the tort of negligence. However, there is an important exception for negligent misstatement: where a defendant with special skill or knowledge voluntarily assumes responsibility for providing information or advice to a claimant who reasonably relies on it, a duty of care may arise.
The governing authority is Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (House of Lords). A bank gave a negligent credit reference; the plaintiff relied on it and suffered financial loss. The House of Lords held that a duty could arise from an "assumption of responsibility" even in the absence of a contract. The key elements are: (1) the defendant had special skill, (2) they voluntarily assumed responsibility, (3) the claimant reasonably relied, and (4) reliance was known to the defendant.
7. Recent T&T Case Law
Balwah v Surgi-Med Clinic & Dr Marwan Abdulla
A significant recent development in T&T negligence law is the case of Balwah v Surgi-Med Clinic & Dr Marwan Abdulla, in which the Court of Appeal of Trinidad and Tobago held that negligence was established in the timing of delivery of a baby, with the delay contributing to hypoxic-ischaemic injury to the child. The case raises important questions about the application of the Bolam standard in obstetric care and the causation requirements for hypoxic brain injury.
In November 2025, the Judicial Committee of the Privy Council granted leave to appeal, with Lords Briggs, Burrows, and Stephens constituted to hear the matter. The issues on appeal include: (i) whether the Court of Appeal correctly applied the Bolam standard in assessing the defendant's conduct, and (ii) the causation test applicable to hypoxic-ischaemic injury — specifically, whether material contribution to risk suffices or whether the but-for test applies. This case is expected to provide important guidance on medical negligence causation in T&T.
Negligence Claims Against the State
Claims in negligence against the Government of Trinidad and Tobago, its ministries, and state agencies are governed by the State Liability and Proceedings Act, Chapter 8:02 of the Laws of Trinidad and Tobago. This Act abrogated the old Crown immunity rule and provides that the State is subject to the same liabilities in tort as a private individual of full age and capacity. The State may therefore be sued for the negligence of its employees — including police officers, prison officers, doctors in public hospitals, and civil servants — acting in the course of their duties.
8. Limitation Period — When Must You Sue?
The governing rule: In Trinidad and Tobago, a claimant must bring a negligence action within four years of the date on which the cause of action accrued, under Section 3 of the Limitation of Certain Actions Act, Chapter 7:09 of the Laws of Trinidad and Tobago.
Key Limitation Rules
| Situation | When time begins to run |
|---|---|
| Immediate damage (accident, injury) | Date of the accident or negligent act |
| Latent damage (not immediately discoverable) | Date the claimant knew, or ought reasonably to have known, of the injury and its connection to the defendant's act |
| Minors (persons under 18) | Time does not run until the claimant reaches 18 years |
| Persons of unsound mind | Time does not run while the disability continues |
The latent damage provision is critical in cases of occupational disease (where exposure to a hazard occurs over years before symptoms manifest), some medical negligence claims, and cases of defective products with delayed effects. The clock does not necessarily start on the date of the negligent act — it starts when the claimant discovers, or could with reasonable diligence have discovered, that they have suffered damage attributable to the defendant's act or omission.
Filing proceedings outside the limitation period will ordinarily result in the claim being struck out as statute-barred. Time limits in T&T negligence claims are strict, and legal advice should be sought promptly on any potential claim.
9. The Law in Summary — Statutes and Key Cases
Relevant Legislation
| Statute | Chapter | Relevance |
|---|---|---|
| Limitation of Certain Actions Act | Ch. 7:09 | Four-year limitation period for negligence claims |
| State Liability and Proceedings Act | Ch. 8:02 | State suable in negligence like a private person |
| Law Reform (Miscellaneous Provisions) Act | (TT equivalent) | Apportionment of contributory negligence |
Key Case Law
| Case | Court | Principle |
|---|---|---|
| Donoghue v Stevenson [1932] AC 562 | House of Lords | Neighbour principle; foundation of duty of care |
| Caparo Industries plc v Dickman [1990] 2 AC 605 | House of Lords | Three-part test: foreseeability, proximity, fair/just/reasonable |
| Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 | Exchequer | Definition of negligence; reasonable person standard |
| Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 | Queen's Bench | Professional negligence standard |
| Bolitho v City and Hackney HA [1998] AC 232 | House of Lords | Bolam qualified — professional opinion must be logical |
| Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428 | Queen's Bench | But-for causation test |
| The Wagon Mound [1961] AC 388 | Privy Council | Remoteness — reasonable foreseeability of type of damage |
| Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 | House of Lords | Control mechanisms for secondary victim psychiatric injury |
| Hedley Byrne & Co v Heller [1964] AC 465 | House of Lords | Negligent misstatement; assumption of responsibility |
| Bonnington Castings v Wardlaw [1956] AC 613 | House of Lords | Material contribution to indivisible harm |
Frequently Asked Questions
What must a claimant prove to succeed in negligence in T&T?
A claimant must prove four elements on the balance of probabilities: first, that the defendant owed them a duty of care; second, that the defendant breached that duty by failing to meet the standard of the reasonable person (or reasonable professional, where applicable); third, that the breach caused the damage complained of; and fourth, that the damage was not too remote — meaning it was of a type that was reasonably foreseeable. All four elements must be established. Proof of one or two elements alone is not sufficient to found a successful claim.
How do T&T courts decide whether a duty of care exists?
T&T courts apply the three-part Caparo Industries plc v Dickman [1990] 2 AC 605 test. The court asks: (1) Was it reasonably foreseeable that the defendant's conduct could cause harm to the claimant? (2) Was there a relationship of sufficient proximity between the parties? (3) Is it fair, just, and reasonable in all the circumstances to impose a duty? All three criteria must be satisfied. In established categories of duty — road accidents, employer-employee, doctor-patient — the existence of the duty is generally not in dispute, and the focus shifts to breach and causation.
What is the Bolam standard and when does it apply?
The Bolam standard is the test for breach of duty in professional negligence cases, derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. It holds that a professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of practitioners skilled in that particular field, even if other practitioners would have taken a different approach. The standard applies to doctors, lawyers, accountants, engineers, and other professionals. It means professionals are judged against the standard of a reasonably competent member of their profession — not against the standard of the best practitioner, or a lay person's view of what should have been done. The Bolam test was refined in Bolitho to require that the accepted practice must also withstand logical analysis.
What is the but-for test in causation?
The but-for test asks: but for the defendant's breach of duty, would the claimant have suffered the damage? The claimant must show that the defendant's breach was a necessary condition of the damage — that if the breach had not occurred, the damage would not have happened. The test was applied in Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428, where a hospital's failure to examine a patient did not give rise to liability because the patient would have died regardless of treatment. Where the but-for test cannot be satisfied because of multiple concurrent causes, courts may apply the material contribution test in appropriate cases.
Can the defendant avoid paying the full amount if the claimant was also at fault?
Yes. Where the claimant's own negligence contributed to their damage, the court will reduce the damages award by the proportion reflecting the claimant's share of responsibility, under the Law Reform (Miscellaneous Provisions) Act (contributory negligence). For example, if a pedestrian is found to have been 30% at fault for crossing the road carelessly while the driver was 70% at fault, the claimant's damages will be reduced by 30%. This is an apportionment exercise, not an all-or-nothing defence — the claim is not defeated, but the award is reduced.
Can I claim for psychiatric injury caused by witnessing an accident?
Yes, but the requirements are strict. A primary victim — someone who was themselves within the zone of physical danger — may claim for psychiatric injury if it was foreseeable that they might suffer some physical or psychiatric harm. A secondary victim — someone who witnessed injury to another — must satisfy all three control mechanisms from Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: (1) a close tie of love and affection with the primary victim; (2) proximity in time and space to the accident or its immediate aftermath; and (3) perception of the event through their own unaided senses. Television or radio broadcasts do not satisfy the third requirement. Claims by secondary victims are assessed rigorously and it is important to obtain legal advice at the earliest opportunity.
How long do I have to bring a negligence claim in Trinidad and Tobago?
The limitation period for negligence claims in Trinidad and Tobago is four years, under Section 3 of the Limitation of Certain Actions Act, Chapter 7:09. Time ordinarily begins to run from the date the damage occurred. Where the damage was not immediately discoverable — for example, in cases of occupational disease or some forms of medical negligence — time runs from the date you knew, or reasonably ought to have known, that you had suffered damage attributable to the defendant's act. Minors and persons of unsound mind enjoy protection: time does not run against a minor until they turn 18. If you believe you may have a negligence claim, you should seek legal advice as soon as possible — delay can extinguish your right to sue entirely.
Written by Martin George, Attorney-at-Law. Martin George is the founder and principal attorney of Martin George & Company, with more than 35 years of active legal practice in the courts of Trinidad and Tobago. He is a former Commissioner on the Law Reform Commission of Trinidad and Tobago and a member of the Prime Minister's Constitutional Committee for Internal Self-Government for Tobago. This article is published for general information and public legal education. It does not constitute legal advice. For advice on your specific situation, contact Martin George & Company.
Last reviewed: April 2026