Introduction to tort law - Overview of tort law and negligen...

Learning Outcomes

This article outlines the core structure and exam-focused application of tort law and negligence for SQE1 candidates, explaining the purpose and aims of tort law and how negligence fits within the wider system of civil liability. It outlines the four elements of negligence and the incremental/analogy approach to duty, distinguishing between established duties and novel situations requiring Caparo analysis, including special duty problem areas such as omissions and liability for acts of third parties, and the policy informing the “fair, just and reasonable” limb. It details breach assessment via the reasonable person standard, professional standards (Bolam/Bolitho) and risk disclosure (Montgomery), together with special standards for children, sports participants, learner drivers, illness, emergencies, and evolving states of knowledge, and shows how courts weigh likelihood and seriousness of harm against the cost and utility of precautions. It analyzes factual and legal causation, including material contribution, increased risk, intervening acts, and scope-of-duty reasoning, and explains remoteness (Wagon Mound), the similar-in-type principle, and the eggshell skull rule. It also reviews key evidential tools—res ipsa loquitur and Civil Evidence Act 1968 s.11—and illustrates how to apply all of these principles to typical SQE1 multiple choice question scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the core principles of tort law and negligence, with a focus on the following syllabus points:

• 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
• established duty relationships and the incremental/analogy approach to new duties
• the Caparo three-stage test for duty of care in novel situations
• special duty situations: omissions and liability for acts of third parties
• the standard of care, including professional standards (Bolam/Bolitho) and informed consent (Montgomery)
• special standards: children, sporting activities, learner drivers, illness, emergencies, and state of knowledge
• assessing breach using relevant factors: likelihood and seriousness of harm, cost/practicability of precautions, and social utility
• factual and legal causation, including the “but for” test, material contribution/increased risk, scope of duty, and novus actus interveniens
• remoteness (Wagon Mound), similar-in-type injuries, and the eggshell skull rule
• evidential tools: res ipsa loquitur and the Civil Evidence Act 1968 s.11 on criminal convictions in civil proceedings
• 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.

1. What are the four elements a claimant must prove to succeed in a negligence claim?
2. When is the Caparo three-stage test used, and what are its three requirements?
3. How does the "but for" test determine factual causation in negligence?
4. 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. Public policy—such as avoiding indeterminate liability and preserving useful activities—often shapes how courts define and limit tortious duties.

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:

1. The defendant owed the claimant a duty of care.
2. The defendant breached that duty.
3. The breach caused the claimant's loss (causation).
4. The loss was not too remote (remoteness).

Each limb is conceptually distinct. Failure on any element defeats the claim.

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:

1. Was harm to the claimant reasonably foreseeable?
2. Was there a relationship of proximity between the parties?
3. Is it fair, just, and reasonable to impose a duty?

In modern practice, courts first ask whether the case fits within or is analogous to established categories, deciding duty incrementally and by analogy. Only if the situation is genuinely novel will Caparo’s three-stage framework be engaged. The Supreme Court has stressed that Caparo should not be applied mechanistically to established duty scenarios; established categories remain the first port of call.

Key Term: duty of care
A legal obligation to take reasonable care to avoid causing foreseeable harm to others.

Established duties include, for example, road user to road user, employer to employee, occupier to lawful visitor, manufacturer to consumer (Donoghue v Stevenson), and healthcare professional to patient. Where a case does not exactly match an earlier category, the court asks whether it is sufficiently similar to extend existing duties incrementally.

Special duty problem areas concern omissions and acts of third parties:

• Omissions: there is generally no positive duty to act. However, duties may arise where the defendant has created or adopted a danger, exercised control (e.g., over a child or patient), or assumed responsibility (e.g., taking charge of a vulnerable person), and in certain statutory contexts.
• Acts of third parties: there is usually no duty to prevent harm caused by third parties, but exceptions exist where the defendant has a special relationship with the claimant or the third party (e.g., authority or supervision), where the defendant created a source of danger, or where a known danger was not reasonably controlled.

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.

The reasonable person test is objective. Courts do not excuse carelessness due to inexperience or personal shortcomings. They do, however, recognise special standards in certain situations:

• Professionals: the Bolam test asks whether the defendant acted in accordance with a responsible body of professional opinion. Bolitho adds that such opinion must have a logical basis. For information disclosure before treatment, Montgomery replaces Bolam: doctors must take reasonable care to ensure patients are informed of material risks and reasonable alternatives; “material” means a risk that a reasonable person in the patient’s position would attach significance to, or the doctor knows this particular patient would.
• Children: the standard is adjusted to the age of the child—what a reasonable child of that age would do.
• Learner drivers: held to the standard of a reasonably competent driver; no allowance for inexperience.
• Illness: liability may depend on foreseeability and awareness; a sudden, unforeseeable medical event may excuse breach, but continuing to drive despite obvious impairment likely does not.
• Emergencies and social utility: courts may accept higher risk where the activity has pressing social value (e.g., rescue), but the defendant must still act reasonably in the circumstances.
• State of knowledge: conduct is judged by the knowledge reasonably available at the time of the incident, not with hindsight.

Relevant factors informing breach include the likelihood of harm, seriousness of potential injury, the cost and practicability of precautions, and social value of the activity. The higher the likelihood and gravity of harm, the greater the precautions expected. Conversely, where risk is very small and precautions are onerous, failure to take them may be reasonable.

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.

In practice, breach often turns on evidence. Two evidential tools are frequently relied upon:

• Res ipsa loquitur: where the accident is of a kind that ordinarily does not happen without negligence, caused by something under the defendant’s control, and the precise cause is unknown, the court may infer negligence unless the defendant rebuts the inference.
• Civil Evidence Act 1968 s.11: a criminal conviction is admissible evidence in civil proceedings as proof that the person committed the offence, shifting the burden to the defendant to prove otherwise. This can be significant in road traffic and other negligence contexts where the criminal offence involves careless conduct.

Key Term: res ipsa loquitur
A rule permitting an inference of negligence where the thing causing damage was under the defendant’s control, the cause is unknown, and such accidents ordinarily do not happen without negligence.

Worked Example 1.3

A hospital porter is injured when a pallet falls from a hoist operated by the hospital’s maintenance team. The injured porter cannot establish exactly what went wrong. Can negligence be inferred?

Answer:
Potentially, yes. Hoisting pallets should not fall absent negligence, the system/equipment was under the defendant’s control, and the precise cause is unknown. Res ipsa loquitur may allow the court to infer negligence unless the defendant shows a non-negligent explanation.

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.

The classic “but for” test is illustrated by failed treatment cases: if, even with proper care, the outcome would have been the same, the breach did not cause the harm. However, complex scenarios require refined approaches:

• Multiple simultaneous causes: where different sources contribute to the same harm, liability may be established if the defendant’s breach materially contributed to the damage.
• Increased risk (especially industrial disease): where scientific uncertainty means it is impossible to prove the precise causal mechanism, liability may be established if the defendant’s breach materially increased the risk of the claimant suffering the harm. In mesothelioma cases, Fairchild makes defendants jointly and severally liable where they materially increased risk; Barker apportioned liability by contribution to risk, but for mesothelioma Parliament restored joint and several liability through the Compensation Act 2006 s.3.
• Scope-of-duty reasoning: even where “but for” is satisfied, losses outside the scope of the duty are not recoverable. The SAAMCo line of cases explains that a defendant is only liable for losses within the scope of the duty assumed (e.g., a doctor certifying knee fitness is not liable for general mountaineering injuries unrelated to the knee).

Intervening acts may break the chain of causation. A third-party act will only break the chain if it is independent, unforeseeable, and sufficiently unusual in the circumstances. Ordinary negligent acts of others may be foreseeable and leave the original defendant liable; gross negligence or reckless/intentional acts are more likely to be treated as breaking the chain. A claimant’s own unreasonable act may also break the chain; reasonable but risky conduct tends instead to be addressed by contributory negligence.

Worked Example 1.4

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 a sufficiently independent and unforeseeable intervening act.

Sometimes a later event relates to the same injury rather than breaking the chain. Where later wrongful conduct affects the same damage, the defendants may be jointly liable; where a later, non-wrongful event naturally supersedes the first injury’s effects, responsibility may end at the supervening event. Courts resolve these issues by asking whether the later event constitutes a novus actus or a continuation of causally linked harm.

Worked Example 1.5

A claimant suffers a leg injury due to the defendant’s negligence. Months later a non-negligent illness independently disables the claimant. How is liability addressed?

Answer:
The later, non-negligent illness as a supervening event generally limits the first defendant’s liability to losses up to that point. The original defendant is liable for the consequences of the first injury until the supervening illness; the natural progression of the second cause is not the original defendant’s responsibility.

Remoteness and the eggshell skull rule

The defendant is only liable for losses that are a reasonably foreseeable consequence of the breach. Foreseeability is assessed by the type of harm, not its precise manner of occurrence. If the kind of harm is foreseeable, it does not matter that the harm occurred in an unusual way. Similarly, where the claimant has a particular vulnerability, the defendant must take the claimant as found: the eggshell skull rule requires full liability for the actual extent of injury, even if it is greater than expected.

The “similar-in-type” principle prevents defendants from escaping liability because the injury occurred via a surprising chain of events, so long as the harm is of a kind that was foreseeable. Foreseeability can also extend to consequences of reasonable medical treatment; severe allergic reactions do not defeat liability where treatment was a foreseeable consequence of the breach.

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 1.6

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.

Worked Example 1.7

Contractors leave an open inspection hole lit with paraffin lamps. A child knocks a lamp into the hole; an unexpected explosion causes burns. Is the damage too remote?

Answer:
No. Burns are of a foreseeable kind when paraffin lamps are left near a hazard; the precise mechanism (unexpected explosion) does not defeat liability where injury of a similar type was foreseeable.

Worked Example 1.8

A claimant’s car is damaged by the defendant’s negligence. The claimant cannot afford an upfront hire and uses a more expensive credit hire arrangement. Are the extra costs recoverable?

Answer:
Generally yes. The defendant must take the claimant as found. Where impecuniosity reasonably leads to higher mitigation costs (such as credit hire), those increased costs are recoverable if otherwise reasonable.

Special duty situations: omissions and third parties (context and application)

The default position is no liability for failures to act or for harms caused by third parties. Duties can nonetheless arise where the defendant:

• exercises control over a person or place creating a foreseeable risk (e.g., supervising children or detainees),
• assumes responsibility for the claimant’s safety (e.g., taking charge of an intoxicated person),
• creates or adopts a danger (e.g., failing to address a fire started by lightning),
• or knows of a specific danger posed by third parties and unreasonably fails to take steps to prevent it.

Courts scrutinise these exceptions carefully, balancing foreseeability and proximity with policy and resource considerations. Duties are more readily imposed where the risk is specific and the defendant’s position gives them practical control to prevent the harm.

Worked Example 1.9

A local authority is aware of a derelict building frequently accessed by trespassers who start fires. The building adjoins occupied premises. The authority takes no steps to secure it. A fire spreads and causes damage next door. Is a duty owed?

Answer:
A duty may arise where the authority knows of a specific recurring danger and has reasonable means to reduce risk (e.g., securing the building). Failure to act could be negligent given knowledge of the hazard and foreseeability of spread to adjoining property.

Exam Warning

For SQE1, only use the Caparo test where there is no established duty of care. Courts decide duty incrementally and by analogy first. Also, always distinguish between factual causation and legal causation, and remember scope-of-duty may limit recoverable losses even where “but for” is satisfied.

Revision Tip

When answering SQE1 questions, always identify each element of negligence in order: duty, breach, causation, and remoteness. Where duty is contested, ask: established category? incremental extension? only then Caparo. For breach, articulate the standard (general/professional/special) and apply relevant factors. For causation, separate factual from legal; consider material contribution/increased risk where appropriate. For remoteness, focus on kind of harm and apply eggshell skull.

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
• how courts approach duty incrementally and by analogy, and when to apply Caparo’s three-stage test
• special duty situations: omissions and acts of third parties, including control, assumption of responsibility, creation/adoption of dangers, and known dangers
• the standard of care and how breach is assessed, including professional standards (Bolam/Bolitho) and the patient-focused duty to disclose material risks (Montgomery)
• special standards for children, learner drivers, illness, emergencies, and the state of knowledge
• factors relevant to breach: likelihood and seriousness of harm, cost/practicability of precautions, and social utility
• the difference between factual and legal causation, including the "but for" test, material contribution/increased risk, scope-of-duty limits, and novus actus interveniens
• the test for remoteness (Wagon Mound), the similar-in-type principle, and the eggshell skull rule
• evidential aids: res ipsa loquitur and the Civil Evidence Act 1968 s.11 using criminal convictions in civil proceedings

Key Terms and Concepts

• tort
• negligence
• duty of care
• breach of duty
• causation
• but for test
• novus actus interveniens
• remoteness
• eggshell skull rule
• res ipsa loquitur