Learning Outcomes
After reading this article, you will understand the core principles and structure of the tort of negligence, including duty of care, breach, causation of damage, applicable defences, and remedies. You will be able to identify and apply relevant tests and legal requirements, explain essential terms, and resolve practical scenarios common to SQE2 assessments.
SQE2 Syllabus
For SQE2, you are required to understand negligence from a practical standpoint. Emphasis is placed on analysing real-world scenarios and accurately applying the law. In your exam preparation, pay special attention to:
- the elements required to establish negligence (duty, breach, causation, damage)
- the standard for duty of care (including established and novel duty situations)
- breach of duty, reasonable person and special standards
- factual and legal causation, including the ‘but for’ test and remoteness
- available defences, especially contributory negligence and voluntary assumption of risk
- the remedies available to claimants in negligence.
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.
- List the four elements a claimant must prove to succeed in a negligence action.
- What is the general test for duty of care and when does the Caparo test apply?
- Briefly explain the “but for” test of causation in negligence.
- Give two examples of situations where contributory negligence may be a defence.
Introduction
Negligence is the most frequently examined tort on the SQE2. To succeed in a negligence claim, a claimant must prove that the defendant owed them a duty of care, breached that duty, caused compensable damage, and that no complete defence bars recovery. The law sets out general rules for these elements but also specific approaches for novel situations. Below, each aspect is broken down, clearly defining the structure and tests needed for SQE2 success.
Elements of Negligence
A claimant must prove:
- The defendant owed them a duty of care.
- The defendant breached that duty.
- The breach caused damage to the claimant (causation).
- The damage was not too remote.
Duty of Care
The first step is whether the defendant owed the claimant a duty to take care to avoid causing harm.
Key Term: duty of care
The legal obligation to avoid causing foreseeable harm to others in situations recognised by law.
Established Duty of Care
Some relationships always impose a duty (e.g. driver to road user, doctor to patient, manufacturer to end consumer, employer to employee).
Novel Duty Situations
When the circumstances are novel, the court applies the Caparo test:
- Was the harm to the claimant reasonably foreseeable?
- Was there a relationship of proximity (legal closeness) between claimant and defendant?
- Is it fair, just and reasonable to impose a duty in these circumstances?
Key Term: Caparo test
The three-stage test (foreseeability, proximity, fairness) used for new duty situations in negligence.
Breach of Duty
A breach occurs if the defendant’s actions fell below the legal standard.
Key Term: breach of duty
A failure to meet the standard of care the law requires in a given circumstance.
Standard of Care
The default standard is an objective one: the reasonable person test.
Key Term: reasonable person
The notional person who exercises ordinary care and skill in similar circumstances.
Special standards:
- Professionals: Measured against a competent professional in that field.
- Children: Measured against a reasonable child of similar age.
- Learners/Novices: Still held to the standard of a competent, qualified person.
Factors Affecting the Standard
Courts consider:
- The likelihood of harm
- The seriousness of potential harm
- Practicability and cost of precautions
- Social value or utility of the defendant's conduct
Causation (Factual and Legal)
After proving a breach, the claimant must show that the defendant’s breach caused their damage.
Factual Causation
Apply the “but for” test: Would the damage have occurred but for the defendant’s breach?
Key Term: but for test
The test for factual causation: Would the harm have happened “but for” the defendant’s actions?
Legal Causation (Remoteness)
Even if the breach factually caused damage, the defendant is only liable for losses that were a reasonably foreseeable consequence of the breach.
Key Term: remoteness
The requirement that only foreseeable types of harm are compensable in negligence.
Egg Shell Skull Rule
If the claimant suffers greater harm due to a pre-existing vulnerability, the defendant is liable for the full extent.
Key Term: egg shell skull rule
The principle that a defendant must take their victim as they find them, compensating for full damage caused, even if unforeseeable in extent.
Defences in Negligence
Defendants may limit or defeat liability by raising a valid defence.
Contributory Negligence
The claimant’s own carelessness contributed to the harm. If proven, damages are reduced to reflect shared responsibility.
Key Term: contributory negligence
A partial defence: the claimant’s failure to take reasonable care for their own safety, which contributed to the loss.
Voluntary Assumption of Risk
If the claimant freely agreed to accept the specific risk of harm, this can be a complete defence. This defence rarely succeeds in practice unless acceptance is clear.
Key Term: voluntary assumption of risk
Also known as “volenti non fit injuria”—where the claimant agreed to take the risk of harm.
Remedies for Negligence
The principal remedy is damages (compensation). The purpose is to put the claimant in the position they would have been in had the tort not occurred. Claimants can recover damages for pecuniary and non-pecuniary losses, subject to remoteness and mitigation.
Worked Example 1.1
A cyclist is hit by a van at a junction. The cyclist was not wearing a helmet as required by safety guidelines. The cyclist suffers a severe head injury. Is the cyclist entitled to damages?
Answer:
Yes, the van driver owed a duty, breached by driving carelessly. The “but for” test is satisfied. However, the cyclist’s failure to wear a helmet is contributory negligence. The damages will be reduced, but not to zero.
Worked Example 1.2
A doctor fails to diagnose a rare side effect, leading to a patient’s serious illness. The side effect was not known about at the time. Is the doctor liable?
Answer:
No. The standard is the reasonable doctor, based on the knowledge at the time of the alleged negligence. The court does not use hindsight.
Exam Warning
On the SQE2, answers must apply the correct standard for breach: do not confuse the objective (“reasonable person”) test with subjective standards. Always ask for the “legal” standard, not just what the defendant personally thought or knew.
Revision Tip
In scenario questions, structure your answer using the four elements: duty, breach, causation, damage. Allocate marks appropriately—never skip the factual causation step.
Key Point Checklist
This article has covered the following key knowledge points:
- The four-stage test for negligence: duty, breach, causation (factual), and damage (not too remote).
- Established and novel duty situations, including the Caparo test.
- Objective standard of care and exceptions for professionals or children.
- The application of the “but for” test and the principle of remoteness in causation.
- Common defences: contributory negligence (reducing damages) and voluntary assumption of risk (complete defence).
- Remedies typically aim to compensate for all foreseeable loss resulting from the breach.
Key Terms and Concepts
- duty of care
- Caparo test
- breach of duty
- reasonable person
- but for test
- remoteness
- egg shell skull rule
- contributory negligence
- voluntary assumption of risk