tort chapter 1

• What topic is covered in the current chapter?

  The core principles of tort law, particularly negligence and when a duty of care is owed between a defendant and a claimant in a negligence claim.
• What are candidates generally not required to recall for SQE1?

  • Specific case names
  • Statutory or regulatory authorities
• What level of competency are learning outcomes aimed at in this chapter?

  A competent newly qualified solicitor in practice.
• What are the key areas addressed in this chapter's learning outcomes?

  • Negligence and established duty situations
  • Negligence and novel duty situations
• What is the essential first element a claimant must prove in a negligence claim?

  That the defendant owed them a legal duty of care.
• What aspect of negligence is discussed in section 1.3?

  Liability for omissions to act.
• What does the word ‘tort’ mean?


  Wrong.
• What does a tort involve?

  • Infringement of a legal right
  • Breach of a legal duty
  • Claim in the civil courts
• What term is used to describe a person who commits a tort?

  A tortfeasor.
• What is the law of tort concerned with?

  It governs what happens when one person sues another person because of what that other person has done.
• What are the terms for the person bringing a case in tort law?

  • Claimant (after 1999)
  • Plaintiff (before 1999)
• What is the term for the person against whom a tort case is brought?

  Defendant.
• For what can the tort of negligence provide compensation?

  Harm caused to a claimant by the carelessness of a defendant.
• Why is the tort of negligence the most important tort in practice?

  More claims are brought in negligence than any other tort.
• What distinguishes negligence in the everyday sense from negligence in the legal sense?

  • Everyday negligence: careless or neglectful behaviour
  • Legal negligence: involves a breach of a legal duty of care that results in undesired harm to the claimant
• How is the tort of negligence defined?

  ‘A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.’
• What is the first question the courts ask to determine a defendant's responsibility in negligence?

  Whether or not the defendant owed the claimant a legal duty to take care.
• What is the purpose of the first chapter on negligence?

  • To consider whether a defendant owed the claimant a legal duty to take care
  • To outline the other elements of negligence that must be proven for compensation
• What are the three elements examined in a possible claim in the tort of negligence?

  1. Breach of duty
  2. Causation
  3. Defences
• What question must be answered to determine if a defendant was in breach of duty?

  Was the defendant in breach of duty?
• What is the essential first element a claimant must prove to establish liability in negligence?

  That the defendant owed the claimant a duty of care.
• What type of tort is negligence?

  • Common law tort
  • The law is made by the courts
  • Case law forms the basis of negligence
  • Not contained in an Act of Parliament
• When will a defendant be liable in negligence for a careless act?

  Only if they are under a legal duty to take care for the person who is injured.
• What is the essential first element a claimant must prove in a negligence claim?

  • That the defendant owed them a legal duty of care
• What are established duty situations in negligence?

  Situations where it is already clear from case law that a duty of care is owed.
• How are the rules of negligence established?

  • By case law
  • Establishing precedents when a duty of care exists
  • Courts can decide that a duty of care is not owed
• What is the established duty regarding police conduct in investigations?

  • There is no established general duty owed by the police to a suspect regarding how investigations are conducted.
• Under what circumstances can established duties in negligence be relied upon?

  • Only when the claimant has suffered physical damage, such as personal injury or damage to property
  • Cannot be relied upon for pure economic loss or pure psychiatric harm
• What are some of the most common established duty situations in negligence?

  • One road user to another: driver to other drivers, passenger, pedestrian, cyclist to driver or pedestrian
  • Doctor to patient
  • Employer to employee
  • Manufacturer to consumer
  • Tutor to tutee, teacher to pupil
• In what situation does a defendant owe a duty of care to a rescuer?

  • When the defendant’s actions have created a dangerous situation making it reasonably foreseeable that someone may attempt a rescue.
• What case established another duty situation that can be added to the list of established duties?

  Baker v TE Hopkins & Son Ltd [1959] 3 All ER 225.
• What are novel duty situations in negligence?

  New or novel situations where courts are asked to decide for the first time whether a particular relationship or set of facts would give rise to a duty of care.
• For what types of damage can novel duties in negligence be relied upon?

  • Only for physical damage, such as personal injury or damage to property
  • Cannot be relied upon for pure economic loss or pure psychiatric harm
• What is the modern test used by courts to determine duty of care in novel situations?

  The Caparo test.
• Why is it necessary to consider Donoghue v Stevenson before the Caparo test?

  Because the Caparo test builds upon the ‘neighbour principle’ established in Donoghue v Stevenson.
• What is the significance of the neighbour principle in negligence?

  • It was established in Donoghue v Stevenson
  • It provides a test to determine whether a defendant owes a duty of care in novel situations
  • It is expressed as taking reasonable care to avoid foreseeable injury to persons closely and directly affected
• What does Lord Atkin state about 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.’
• How does Lord Atkin define a neighbour in law?

  ‘Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’
• What type of proximity is required for the neighbour principle?

  Proximity in the sense of having the other person in mind when performing an act, not just physical proximity.
• What is the criterion for establishing a duty of care using the neighbour principle?

  Whether the defendant ought reasonably to have foreseen the likelihood of injury to the claimant.