Learning Outcomes
After reading this article, you will be able to explain the purpose of tort law, identify the four elements of a negligence claim, and apply the Caparo test for duty of care. You will understand the difference between factual and legal causation, the standard of care, and the rules on remoteness. You will also be able to use these principles to answer SQE1-style questions.
SQE1 Syllabus
For SQE1, you are required to understand the core structure of tort law and the elements of negligence. Focus your revision on:
- the objectives and definition of tort law in England and Wales
- the four elements of a negligence claim: duty of care, breach, causation, and remoteness
- the Caparo three-stage test for duty of care in novel situations
- the standard of care and how breach is assessed
- the distinction between factual and legal causation, including the "but for" test and novus actus interveniens
- the test for remoteness and the eggshell skull rule
- applying these principles to SQE1-style multiple choice questions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the four elements a claimant must prove to succeed in a negligence claim?
- When is the Caparo three-stage test used, and what are its three requirements?
- How does the "but for" test determine factual causation in negligence?
- What is the effect of the eggshell skull rule on a defendant's liability?
Introduction
Tort law provides remedies for civil wrongs, aiming to compensate those who suffer harm due to the actions or omissions of others. The most common tort is negligence, which requires claimants to prove four elements: duty of care, breach, causation, and remoteness. Understanding these elements and how they interact is essential for SQE1.
The purpose of tort law
Tort law is designed to compensate those who suffer loss or injury, deter careless behaviour, and ensure fairness between parties. Unlike criminal law, which punishes offenders, tort law focuses on restoring claimants to the position they would have been in had the wrong not occurred.
Key Term: tort A civil wrong for which the law provides a remedy, usually compensation, to the person harmed.
The structure of a negligence claim
A successful negligence claim requires the claimant to prove, on the balance of probabilities:
- The defendant owed the claimant a duty of care.
- The defendant breached that duty.
- The breach caused the claimant's loss (causation).
- The loss was not too remote (remoteness).
Key Term: negligence A breach of a legal duty to take care, resulting in damage to another person.
Duty of care and the Caparo test
The first step is to establish whether the defendant owed the claimant a duty of care. In established relationships (such as doctor-patient, road users, or employer-employee), the duty is recognised by law. Where there is no established duty, the courts use the Caparo test:
- Was harm to the claimant reasonably foreseeable?
- Was there a relationship of proximity between the parties?
- Is it fair, just, and reasonable to impose a duty?
Key Term: duty of care A legal obligation to take reasonable care to avoid causing foreseeable harm to others.
Worked Example 1.1
A shopkeeper leaves a box in the middle of a busy aisle. A customer trips over it and is injured. Does the shopkeeper owe the customer a duty of care?
Answer: Yes. Injury to customers is reasonably foreseeable, there is proximity (physical closeness), and it is fair, just, and reasonable to impose a duty on those who create hazards in public spaces.
Standard of care and breach
Once a duty is established, the next question is whether the defendant breached that duty. The standard is that of the "reasonable person" in the defendant's position. For professionals, the standard is that of a reasonable person with the same skill.
Key Term: breach of duty Failure to meet the standard of care required by law in the circumstances.
Worked Example 1.2
A newly qualified doctor fails to diagnose a broken wrist. Is the standard of care that of a newly qualified doctor, or a reasonable doctor in that post?
Answer: The standard is that of a reasonable doctor in that role, regardless of experience. No allowance is made for inexperience.
Causation: factual and legal
Causation has two parts:
- Factual causation: Would the harm have occurred "but for" the defendant's breach?
- Legal causation: Was the harm a reasonably foreseeable result, or was the chain broken by a new intervening act?
Key Term: causation The link between the defendant's breach and the claimant's loss, requiring proof that the breach actually caused the harm.
Key Term: but for test The test asking whether the claimant's loss would have occurred but for the defendant's breach.
Key Term: novus actus interveniens A new intervening act that breaks the chain of causation, relieving the original defendant of liability for subsequent loss.
Worked Example 1.3
A builder negligently leaves a hole uncovered. A passer-by falls in and is injured. Later, a third party pushes the injured person, causing further harm. Is the builder liable for the second injury?
Answer: If the third party's act was unforeseeable and unreasonable, it may break the chain of causation. The builder is liable for the initial injury, but not for subsequent harm caused by the third party.
Remoteness and the eggshell skull rule
The defendant is only liable for losses that are a reasonably foreseeable consequence of the breach. However, if the type of harm is foreseeable, the defendant must take the claimant as found, even if the extent is greater due to a pre-existing condition.
Key Term: remoteness The requirement that the loss suffered must be a reasonably foreseeable consequence of the breach.
Key Term: eggshell skull rule The principle that a defendant is fully liable for all consequences of their breach, even if the claimant is unusually vulnerable.
Worked Example 1.4
A cyclist negligently collides with a pedestrian who has a rare bone disease, causing severe injury. Is the cyclist liable for the full extent of the injury?
Answer: Yes. The eggshell skull rule means the cyclist is liable for all consequences, even if the injury is more severe than expected.
Exam Warning
For SQE1, only use the Caparo test where there is no established duty of care. Always distinguish between factual and legal causation in your answers.
Revision Tip
When answering SQE1 questions, always identify each element of negligence in order: duty, breach, causation, and remoteness.
Key Point Checklist
This article has covered the following key knowledge points:
- The purpose and structure of tort law in England and Wales
- The four elements of a negligence claim: duty, breach, causation, and remoteness
- The Caparo three-stage test for duty of care in novel situations
- The standard of care and how breach is assessed
- The difference between factual and legal causation, including the "but for" test and novus actus interveniens
- The test for remoteness and the eggshell skull rule
- How to apply these principles to SQE1-style questions
Key Terms and Concepts
- tort
- negligence
- duty of care
- breach of duty
- causation
- but for test
- novus actus interveniens
- remoteness
- eggshell skull rule
