2026
TORT
SQE 1 Assessment specification: Negligence
Duty of care (standard (general and professional)) and breach:
When is a duty of care owed between a defendant and a claimant in a claim for
damages in negligence
First element is to establish whether the defendant owes a duty of care
Established duty situations = situations where it is clear that a duty of care is owed i.e. one
road use to another, doctor to patient, Employer (ER) to Employee (EE), manufacturer to
consumer, tutor to tutee, teacher to pupil.
Novel Duty situations = situations which the court is asked to decide for the first time,
whether or not a particular relationship gives rise to a duty of care i.e. can arise where C has
suffered physical damage either personal injury or damage to property. Test is set out in
Caparo but Donoghue v Stevenson set out the neighbour principle.
Neighbour principle - ‘Must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour’.
Who then is a neighbour? Test applied to determine this is ‘of close relationship or
proximity’ i.e. having the other person in mind when you do a certain act.
Test for Duty of Care is set out in Caparo v Dickman:
- Reasonable foresight of harm to the claimant (Langley v Dray)
So q is, is it reasonably foreseeable that the defendant’s actions will affect this
particular claimant?
- Sufficient proximity of relationship between the claimant and defendant (Watson v
British)
- That it is fair, just and reasonable to impose a duty (MacFarlane v Tayside)
→ court taking fair, just and reasonable into account before imposing a duty may also
consider policy factors:
- ‘Floodgates argument’ = one case succeeds, then floodgates will open and
admit loads of other cases
- Deterrence = courts may feel to prevent/deter others from acting in a way
that’s wrong, they should rule in favour of claimant.
- Resources = costs in payment, raises insurance premiums etc
- Public benefit = court will take into account any benefit to the public
- Upholding the law = court’s policy to upload the law despite public criticism.
Omissions
- General rule is that a duty of care is not owed for omissions i.e. failing to act to
prevent harm to the claimant.
Exceptions to this:
- If a person feels compelled morally to act i.e. save someone from drowning - then
there is a duty to not make the situation worse.
1
, 2026
- Occasions when there is a duty to act positively where a person has some sort of
power or control over the other person/subject:
a. ER and EE
b. Schools and children
c. Parents and children
d. Instructors and pupils
- May also be a duty to take positive action to prevent harm being caused to 3rd
parties i.e. duty of an instructor to make sure a learner driver does not cause an
accident.
Breach of Defendant’s duty of care
Standard of care is assessed by the ‘reasonable person’ test:
- Objective test: What would a reasonable person have foreseen in the particular
circumstances?
- Test can be modified by the courts by applying special standards:
→ where a person exercises a special skill, person is judged according to the degree
of skill or competence to be expected from a person who has that special skill i.e. a
doctor must show the same degree of skill as a reasonable doctor (Bolam). Also, if
actions are supported by a body of professional opinion, they should not be judged to
be negligent.
→ Bolitha established that if a body of opinion relied on by the defendant is not
capable of withstanding logical analysis - so the court still may find the defendant in
breach of duty.
- Under-skilled defendant:
Standard is not affected or reduced by a person's lack of skill or experience.
→ Learned driver is expected, even on their first drive, is expected to reach the
standard of the reasonably competent driver (Nettleship)
→ no allowance should be made for the inexperience of a junior doctor (Wisher v
Essex HA)
- Children:
A child defendant will be expected to show such care as can reasonably be expected
of an ordinary child of the same age.
NOTE: cannot sue a child under 18 unless there is an adult to represent him i.e. a
litigation friend.
Analysing the risk
In assessing whether or not a defendant has fallen below a reasonable standard of care,
courts weigh up risk created by D’s activities and precautions which D ought to have
reasonably taken.
Magnitude of risk is determined as;
1. How likely was it that D’s actions could cause an injury?
The greater the chances of D’s activity causing an injury to the claimant, the more
precautions the defendant must take.
2. If an injury was caused, how serious was it likely to be?
The more serious the possible harm to the claimant, the more care the defendant
must take.
2
TORT
SQE 1 Assessment specification: Negligence
Duty of care (standard (general and professional)) and breach:
When is a duty of care owed between a defendant and a claimant in a claim for
damages in negligence
First element is to establish whether the defendant owes a duty of care
Established duty situations = situations where it is clear that a duty of care is owed i.e. one
road use to another, doctor to patient, Employer (ER) to Employee (EE), manufacturer to
consumer, tutor to tutee, teacher to pupil.
Novel Duty situations = situations which the court is asked to decide for the first time,
whether or not a particular relationship gives rise to a duty of care i.e. can arise where C has
suffered physical damage either personal injury or damage to property. Test is set out in
Caparo but Donoghue v Stevenson set out the neighbour principle.
Neighbour principle - ‘Must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour’.
Who then is a neighbour? Test applied to determine this is ‘of close relationship or
proximity’ i.e. having the other person in mind when you do a certain act.
Test for Duty of Care is set out in Caparo v Dickman:
- Reasonable foresight of harm to the claimant (Langley v Dray)
So q is, is it reasonably foreseeable that the defendant’s actions will affect this
particular claimant?
- Sufficient proximity of relationship between the claimant and defendant (Watson v
British)
- That it is fair, just and reasonable to impose a duty (MacFarlane v Tayside)
→ court taking fair, just and reasonable into account before imposing a duty may also
consider policy factors:
- ‘Floodgates argument’ = one case succeeds, then floodgates will open and
admit loads of other cases
- Deterrence = courts may feel to prevent/deter others from acting in a way
that’s wrong, they should rule in favour of claimant.
- Resources = costs in payment, raises insurance premiums etc
- Public benefit = court will take into account any benefit to the public
- Upholding the law = court’s policy to upload the law despite public criticism.
Omissions
- General rule is that a duty of care is not owed for omissions i.e. failing to act to
prevent harm to the claimant.
Exceptions to this:
- If a person feels compelled morally to act i.e. save someone from drowning - then
there is a duty to not make the situation worse.
1
, 2026
- Occasions when there is a duty to act positively where a person has some sort of
power or control over the other person/subject:
a. ER and EE
b. Schools and children
c. Parents and children
d. Instructors and pupils
- May also be a duty to take positive action to prevent harm being caused to 3rd
parties i.e. duty of an instructor to make sure a learner driver does not cause an
accident.
Breach of Defendant’s duty of care
Standard of care is assessed by the ‘reasonable person’ test:
- Objective test: What would a reasonable person have foreseen in the particular
circumstances?
- Test can be modified by the courts by applying special standards:
→ where a person exercises a special skill, person is judged according to the degree
of skill or competence to be expected from a person who has that special skill i.e. a
doctor must show the same degree of skill as a reasonable doctor (Bolam). Also, if
actions are supported by a body of professional opinion, they should not be judged to
be negligent.
→ Bolitha established that if a body of opinion relied on by the defendant is not
capable of withstanding logical analysis - so the court still may find the defendant in
breach of duty.
- Under-skilled defendant:
Standard is not affected or reduced by a person's lack of skill or experience.
→ Learned driver is expected, even on their first drive, is expected to reach the
standard of the reasonably competent driver (Nettleship)
→ no allowance should be made for the inexperience of a junior doctor (Wisher v
Essex HA)
- Children:
A child defendant will be expected to show such care as can reasonably be expected
of an ordinary child of the same age.
NOTE: cannot sue a child under 18 unless there is an adult to represent him i.e. a
litigation friend.
Analysing the risk
In assessing whether or not a defendant has fallen below a reasonable standard of care,
courts weigh up risk created by D’s activities and precautions which D ought to have
reasonably taken.
Magnitude of risk is determined as;
1. How likely was it that D’s actions could cause an injury?
The greater the chances of D’s activity causing an injury to the claimant, the more
precautions the defendant must take.
2. If an injury was caused, how serious was it likely to be?
The more serious the possible harm to the claimant, the more care the defendant
must take.
2
