Core principles of tort - Negligence

Learning Outcomes

This article explains the core principles and structure of the tort of negligence for SQE2 candidates, covering:

• The four elements of negligence—duty, breach, causation and damage—and how to analyse them systematically in exam-style scenarios
• How duties of care are identified in established and novel situations, including omissions, third-party acts and assumption of responsibility
• The objective standard of care, special standards for professionals, children and learners, and the key risk, gravity and utility factors used to assess breach
• Use of evidential tools such as res ipsa loquitur and relevant criminal convictions to prove breach
• Approaches to complex factual and legal causation, including multiple causes, material contribution, novus actus interveniens, remoteness and the egg shell skull rule
• The main defences to negligence—contributory negligence, voluntary assumption of risk and illegality—and their practical effect on damages
• Core principles of remedies, quantification, mitigation, and the procedural framework, including limitation periods and pre-action protocols

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, with a focus on the following syllabus points:

• the elements required to establish negligence (duty, breach, causation, damage)
• the standard for duty of care (including established and novel duty situations)
• omissions and third-party acts: when a duty arises despite the general rule against liability for omissions
• breach of duty: reasonable person, special standards for professionals, children and learners, and relevant risk/utility factors
• evidential shortcuts for breach: res ipsa loquitur and use of criminal convictions (Civil Evidence Act 1968, s.11)
• factual and legal causation, including the ‘but for’ test, material contribution, intervening acts, and remoteness
• defences, especially contributory negligence (including typical reduction ranges) and voluntary assumption of risk
• remedies and quantification basics, mitigation, and the role of limitation and pre-action protocols

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. List the four elements a claimant must prove to succeed in a negligence action.
2. What is the general test for duty of care and when does the Caparo test apply?
3. Briefly explain the “but for” test of causation in negligence.
4. 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.

Negligence compensates for recognised heads of damage: personal injury, physical damage to property, and consequential financial loss flowing from such damage. Pure economic loss (financial loss not consequent on personal or property damage) and pure psychiatric harm are governed by special rules and are treated as limited duty situations. Keep the distinction in mind when assessing “damage”.

Elements of Negligence

A claimant must prove:

1. The defendant owed them a duty of care.
2. The defendant breached that duty.
3. The breach caused damage to the claimant (causation).
4. 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, teacher to pupil, solicitor to client). Where the situation falls squarely within an established category, the court does not need to revisit the duty test.

Product liability is a useful illustration: a “manufacturer” (widely construed to include producers, repairers and installers) owes a duty to foreseeable users when products are placed in circulation in the form intended with no reasonable prospect of intermediate inspection. That duty can cover personal injury and damage to other property caused by the product, but not the cost of replacing the defective product itself (which is generally pure economic loss in tort).

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.

Courts also reason incrementally and by analogy with decided cases. In practice, the Caparo framework is used sparingly for genuinely new categories; where there are close analogies, courts tend to extend by incremental development rather than build entirely new duties.

Omissions and Third-Party Acts

The general rule is no liability for pure omissions or for harm caused by third parties. However, a duty may arise where:

• the defendant has assumed responsibility to the claimant (e.g. professional advice relied on; doctor-patient relationship)
• the defendant exercises control over the source of danger or the third party (e.g. employer over employees, occupier over premises)
• the defendant creates a risk of harm, including by negligent acts that set the stage for subsequent harm
• specific relationships justify a positive duty to act (e.g. employer-employee; certain custodial settings)
• the claimant reasonably relied on the defendant to act to their protection

These exceptions routinely feature in claims involving failures to warn, failure to supervise, or not preventing third-party wrongdoing.

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 the reasonably competent professional in that field. A practice supported by a responsible body of professional opinion will usually meet the standard, provided that opinion is capable of withstanding logical analysis. In medical treatment, separate principles apply to risk disclosure: a doctor must take reasonable care to ensure a patient is aware of material risks and reasonable alternatives, judged by what a reasonable patient in that position would consider significant.
• Children: Measured against a reasonable child of similar age.
• Learners/Novices: Still held to the standard of a competent, qualified person undertaking that activity (e.g. learner drivers judged as competent drivers).

Factors Affecting the Standard

Courts consider:

• The likelihood of harm (the greater the risk, the greater the care required)
• The seriousness of potential harm (greater gravity demands greater precautions)
• Practicability and cost of precautions (reasonable precautions, not all possible precautions)
• Social value or utility of the defendant’s conduct (emergency services or urgent rescue may justify taking greater risks)
• The state of knowledge at the time of the alleged negligence (no hindsight)

Common practice can be relevant evidence but is not conclusive: a whole industry can be negligent if the common practice is unsafe.

Proving Breach: Evidential Tools

In some cases, the method by which an accident occurred is unknown, but the circumstances point strongly to negligence.

Key Term: res ipsa loquitur
Where the facts of an accident “speak for themselves”, allowing an inference of negligence if the thing causing the harm was under the defendant’s control, the kind of accident does not normally occur without negligence, and there is no adequate explanation.

If applicable, this inference shifts the evidential burden to the defendant to provide a non-negligent explanation or show all reasonable care was taken.

Convictions can also assist. Under the Civil Evidence Act 1968, s.11, a criminal conviction is admissible as evidence that the offence was committed. For offences involving a lack of due care (e.g. careless driving), a claimant may rely on the conviction as prima facie proof of breach. Not all convictions are relevant (e.g. driving without insurance says nothing about the standard of driving).

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?

Complex situations may require adapted reasoning:

• Multiple sufficient causes: Where two or more negligent acts operate together to cause an indivisible injury, each tortfeasor can be liable for the whole (subject to contribution between them).
• Material contribution to damage: If the claimant cannot show the precise extent caused by each tortfeasor, causation may be satisfied by proving the defendant’s breach made a material (more than minimal) contribution to the damage.
• Material increase in risk: In specific, tightly delimited contexts (notably certain industrial disease cases where science cannot isolate which exposure caused the disease), proving a material increase in risk may suffice.

Divisible injuries (e.g. conditions that worsen with exposure) may be apportioned between defendants according to their contribution. Indivisible injuries (e.g. a single crash injury) are not apportioned as to liability to the claimant; contribution issues are resolved between defendants.

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. The law requires foreseeability of the kind or type of harm; the precise mechanism, extent, or manner of occurrence need not be foreseeable if the general type is.

Key Term: remoteness
The requirement that only foreseeable types of harm are compensable in negligence.

If injury by fire is foreseeable, it does not matter that the particular way the fire started was unusual. Equally, once physical injury is foreseeable, unusually large financial consequences (e.g. the claimant’s very high salary) are recoverable.

Key Term: novus actus interveniens
A new intervening act (by a third party, the claimant, or nature) which breaks the chain of causation if it is a voluntary, informed, and unreasonable act or a wholly independent event, making the original negligence no longer an effective cause.

Intervening acts by third parties will not break the chain if they were a foreseeable consequence of the defendant’s negligence or if the third party acted reasonably in the circumstances. The claimant’s own unreasonable act after the breach can break the chain; reasonable rescue and self-protective steps do not.

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 under the Law Reform (Contributory Negligence) Act 1945. The focus is on contribution to damage, not to the accident. Typical reductions include:

• Failure to wear a seatbelt or fasten a motorcycle helmet: often 25% where injury would likely have been avoided entirely; around 15% where injuries would have been less severe; 0% where it made no difference
• Accepting a lift from an obviously intoxicated driver: significant reductions may be applied, depending on the facts

Key Term: contributory negligence
A partial defence: the claimant’s failure to take reasonable care for their own safety, which contributed to the loss.

Children are assessed by the standard of a reasonable child of the same age, and courts are cautious before finding young children contributorily negligent. Rescuers are rarely found contributorily negligent unless their conduct shows a wholly unreasonable disregard for their own safety in the circumstances.

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 and informed; it also cannot be raised to defeat claims by passengers in motor vehicles due to statutory policy.

Key Term: voluntary assumption of risk
Also known as “volenti non fit injuria”—where the claimant agreed to take the risk of harm.

Note: Section 149 of the Road Traffic Act 1988 invalidates reliance on volenti against motor vehicle passengers; arguments usually proceed as contributory negligence instead.

Illegality

Where a claim arises from the claimant’s own serious illegality (ex turpi causa), the court may bar recovery as a matter of public policy if there is a close connection between the illegal conduct and the damage claimed. Minor or incidental wrongdoing usually does not suffice. This is a complete defence where it applies.

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.

Common heads include:

• Special damages (past pecuniary loss): e.g. medical expenses, loss of earnings, travel and care costs, property repair or replacement
• General damages:
  • Non-pecuniary: pain, suffering and loss of amenity
  • Future pecuniary loss: future earnings loss, future care and treatment, aids and equipment, accommodation adjustments, and pension loss

Damages for death-related claims are governed by statute. The deceased’s estate can recover what the deceased could have claimed immediately before death (Law Reform (Miscellaneous Provisions) Act 1934). Eligible dependants may bring a dependency claim and, in limited cases, claim a statutory bereavement award (Fatal Accidents Act 1976).

Claimants must mitigate their loss by taking reasonable steps to reduce the impact of the harm. Reasonable mitigation that inadvertently increases loss may still be recoverable if the decision to mitigate was reasonable in the circumstances.

Practical points:

• Limitation: Negligence claims are generally subject to a six-year period from accrual, but personal injury claims must be brought within three years of the date of injury or date of knowledge (Limitation Act 1980, ss.2, 11, 14). Limitation has priority—issuing in time protects the claim; procedural steps can follow.
• Pre-action: Parties should comply with relevant pre-action protocols (e.g. Personal Injury; Clinical Negligence; or the Practice Direction—Pre-Action Conduct where no specific protocol applies), exchanging early information and exploring settlement and ADR.

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.

Worked Example 1.3

A motorcyclist is injured when a car pulls out without giving way. The taxi in which the claimant is a passenger is also speeding. The taxi swerves sharply to avoid the car and the claimant hits the interior window, suffering a head injury. Who caused the injury?

Answer:
Both the car driver (failing to give way) and the taxi driver (speeding) negligently contributed to an indivisible injury. The “but for” test is unhelpful where simultaneous causes operate. Causation is satisfied because the taxi driver’s negligence materially contributed to the injury, and the car driver’s negligence did too. Each can be liable, with contribution issues resolved between them.

Worked Example 1.4

A sober passenger knowingly accepts a lift from a driver who is obviously intoxicated. The driver crashes and the passenger is injured. Can the driver rely on consent to defeat liability?

Answer:
No. In motor vehicle cases, s.149 of the Road Traffic Act 1988 prevents a defendant from relying on volenti against passengers. However, the passenger’s damages are likely to be reduced for contributory negligence for accepting a lift from an intoxicated driver.

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 and when to consider omissions and third-party acts.
• Objective standard of care and exceptions for professionals or children, plus risk, gravity, practicability and social utility factors.
• Evidential tools: res ipsa loquitur and the use of relevant criminal convictions to prove breach.
• Factual causation (including material contribution) and legal causation, intervening acts (novus actus), and the principle of remoteness.
• The egg shell skull rule: liability for the full extent of harm where the type is foreseeable.
• Common defences: contributory negligence (reducing damages), voluntary assumption of risk (rare complete defence), and illegality (policy-based bar).
• Remedies typically aim to compensate for all foreseeable loss resulting from the breach, subject to mitigation; awareness of fatal accident claims.
• Procedural context: core limitation rules for negligence and the role of pre-action protocols.

Key Terms and Concepts

• duty of care
• Caparo test
• breach of duty
• reasonable person
• res ipsa loquitur
• but for test
• remoteness
• novus actus interveniens
• egg shell skull rule
• contributory negligence
• voluntary assumption of risk