L11: Tort Law & Negligence
The tort of negligence: duty of care, breach, causation and damage
Tort Law & Negligence
The tort of negligence: duty of care, breach, causation and damage
Key Fact: A tort is a civil wrong — the claimant sues the defendant for compensation, unlike criminal law where the state prosecutes
Key Fact: Negligence is the most common tort — it requires duty of care, breach of that duty, causation and resulting damage
Key Fact: Duty of care exists where the defendant owed a legal duty to the claimant — established by the Caparo three-stage test
Key Fact: The Caparo test requires: (1) foreseeability of harm, (2) proximity of relationship and (3) it is fair, just and reasonable to impose a duty
Key Fact: Breach of duty occurs where the defendant fell below the standard of the reasonable person — the objective test
Key Fact: The reasonable person takes reasonable precautions against foreseeable risks — professionals must meet the standard of their profession
Key Fact: Causation requires both factual causation ('but for' the defendant's negligence, would the harm have occurred?) and legal causation (was the negligence the proximate cause?)
Key Fact: Damage must be reasonably foreseeable and not too remote — the defendant is only liable for damage that is a foreseeable consequence of the breach
Key Fact: Contributory negligence reduces the claimant's damages if they were partly at fault for their own injury — damages are reduced proportionally
Key Fact: Vicarious liability means an employer can be held liable for the torts of employees committed in the course of employment
Key Fact: Remedies in tort are mainly damages (compensation) but injunctions are available to prevent ongoing harm
Key Fact: The tort of negligence has expanded significantly since Donoghue v Stevenson (1932) but courts have recently limited its scope
📋 Key Vocabulary and Concepts
For Tort Law & Negligence, you must know:
- Duty of care: A legal obligation to take reasonable care to avoid causing harm to another person — the first element of negligence
- Caparo test: The three-stage test for establishing a duty of care: (1) harm was foreseeable, (2) there was proximity between the parties, (3) it is fair, just and reasonable to impose a duty
- Reasonable person standard: The objective test for breach — the defendant must meet the standard of care that a reasonable person would exercise in the same circumstances
- Remoteness of damage: The principle that a defendant is only liable for damage that was a reasonably foreseeable consequence of their negligence — damage that is too remote is not recoverable
- Contributory negligence: Where the claimant's own carelessness contributed to their injury — damages are reduced by the proportion the claimant was at fault
- Vicarious liability: The principle that an employer is liable for torts committed by employees during the course of their employment, even if the employer was not personally at fault
❓ Practice Questions
Q: What are the four elements the claimant must prove in negligence?
Q: What is the Caparo test for duty of care?
Q: How is breach of duty determined?
Q: What is contributory negligence and what is its effect?
Q: When is an employer vicariously liable?
✅ Answers
- The claimant must prove: (1) the defendant owed them a duty of care, (2) the defendant breached that duty, (3) the breach caused the claimant's damage, and (4) the damage was not too remote.
- A duty of care exists where: (1) it was reasonably foreseeable that the defendant's conduct could harm the claimant, (2) there was a sufficiently proximate relationship between the parties, and (3) it is fair, just and reasonable to impose a duty.
- Using the objective test: would a reasonable person in the defendant's position have taken the precautions that the defendant failed to take? If the risk of harm was foreseeable and a reasonable person would have acted differently, there is a breach.
- Contributory negligence occurs where the claimant's own carelessness partly caused their injury. Its effect is that damages are reduced by the percentage the claimant was at fault — e.g. if 25% at fault, damages are reduced by 25%.
- An employer is vicariously liable when an employee commits a tort in the course of their employment — even if the employer gave no instructions and was not personally at fault. The key question is whether the employee was acting within the scope of their job.
🎯 Exam Tips
- Always work through the four elements of negligence in order — duty, breach, causation, damage
- The Caparo test is essential for duty of care — explain each of the three stages
- Use the reasonable person test when discussing breach — it is an objective standard
- Contributory negligence is a common exam topic — know it reduces damages rather than eliminating them
- Vicarious liability is frequently tested — know the 'course of employment' requirement
📝 Exam Technique
GCSE Law Exam Tips — Tort Law & Negligence:
1. For Tort Law & Negligence questions, identify the relevant area of law and state the legal principles clearly
2. Apply legal rules to the facts of the scenario — don't just state the law
3. When evaluating, consider both the effectiveness and fairness of legal rules
4. Reference relevant cases and statutes when discussing Tort Law & Negligence
5. Consider reform proposals and alternative approaches where relevant
1. For Tort Law & Negligence questions, identify the relevant area of law and state the legal principles clearly
2. Apply legal rules to the facts of the scenario — don't just state the law
3. When evaluating, consider both the effectiveness and fairness of legal rules
4. Reference relevant cases and statutes when discussing Tort Law & Negligence
5. Consider reform proposals and alternative approaches where relevant
⚠️ Common Errors
✗ Thinking a duty of care exists in all situations ✓ A duty of care must be established using the Caparo test — there is no general duty to prevent harm to everyone; it depends on foreseeability, proximity and fairness
✗ Confusing causation and remoteness ✓ Causation asks whether the defendant's breach caused the harm (factual and legal); remoteness asks whether the type of damage was reasonably foreseeable — they are separate questions
✗ Saying contributory negligence means the claimant gets nothing ✓ Contributory negligence reduces damages by the proportion the claimant was at fault — it does not eliminate the claim entirely unless the claimant was 100% at fault
✗ Thinking employers are always liable for employee torts ✓ Employers are only vicariously liable for torts committed in the course of employment — if the employee was on a 'frolic of their own' (outside their job), the employer is not liable
✍️ Model Answer
Full-Mark Response
How far does the tort of negligence provide effective compensation for claimants? (15 marks)
The tort of negligence provides a framework for compensating those harmed by others' carelessness, but significant limitations mean that many claimants do not receive effective compensation. Where all four elements are established, the claimant can recover damages to put them in the position they would have been in had the negligence not occurred. This provides meaningful compensation for those with clear, foreseeable injuries caused by an identifiable defendant. Vicarious liability extends protection by holding employers liable for employees' negligence, ensuring that claimants can sue a party with the resources to pay. Contributory negligence, while reducing damages, still allows partially at-fault claimants to recover something. However, the negligence framework has major limitations. The duty of care requirement excludes claimants where the relationship is insufficiently proximate or where the courts consider it unfair to impose liability — this has been used to limit liability for omissions and economic loss. The foreseeability requirement means that unforeseeable types of damage, even if caused by the defendant, are not recoverable. Causation can be impossible to prove where multiple causes contribute to the harm. The cost of litigation is a huge barrier — legal aid for tort claims is almost non-existent, and many claimants cannot afford lawyers. Even successful claimants may receive inadequate damages — the courts use objective measures that do not always reflect the real impact of injury. Furthermore, the objective standard of care means that defendants who are young, inexperienced or less capable are judged against the same reasonable person standard, which may be unfair. Overall, negligence provides effective compensation for straightforward cases but the complexity, cost and limitations of the tort mean that many deserving claimants go uncompensated.
📊 AO Deep Dive
Assessment Objective Analysis
AO1 (Knowledge & Understanding): Demonstrate knowledge and understanding of tort law & negligence, including key legal rules, principles and concepts relevant to OCR J271.
AO2 (Application): Apply knowledge and understanding of tort law & negligence to legal scenarios and problems, using legal reasoning and analysis.
AO3 (Analysis & Evaluation): Analyse, evaluate and critique legal rules, principles and reform proposals related to tort law & negligence, constructing balanced and supported arguments.
📝 Exam Questions by Topic
🎬 Video Resources
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