Tackling a tort law problem question, especially on negligence, can feel daunting. The key to success is a structured, logical approach that methodically applies the law to the facts. This guide will walk you through the essential steps to deconstruct a problem question, analyse each element of negligence, and construct a first-class answer that will impress examiners.
💡 Key Takeaway
The secret to a high-scoring answer in a negligence problem question is the systematic application of the 'duty, breach, causation, remoteness' framework. Each element must be identified, defined with authority, applied to the specific facts, and concluded upon before moving to the next.
Step 1: Deconstruct the Problem - Identify Parties, Loss, and Tort
Before you write a single word, take time to read the scenario carefully. Identify all potential claimants (C) and defendants (D). For each C, identify the specific loss or harm they have suffered (e.g., personal injury, property damage, psychiatric harm, pure economic loss). Finally, identify the tort that gives rise to the claim, which in most exam scenarios will be negligence.
Step 2: The Duty of Care - The Neighbour Principle
The first hurdle in any negligence claim is establishing that the defendant owed the claimant a duty of care. The foundational principle comes from Lord Atkin's famous 'neighbour principle' in the landmark case of Donoghue v Stevenson [1932] AC 562.
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
The Modern Test: Caparo v Dickman
For novel situations where a duty is not already established by precedent (e.g., doctor-patient, road user-road user), you must apply the three-part test from Caparo Industries plc v Dickman [1990] 2 AC 605:
- Reasonable Foreseeability: Was the harm to the claimant a reasonably foreseeable consequence of the defendant's actions? (See Kent v Griffiths [2001] QB 36).
- Proximity: Was there a relationship of legal proximity between the claimant and defendant? This can be physical, circumstantial or causal. (See Bourhill v Young [1943] AC 92).
- Fair, Just and Reasonable: Is it fair, just and reasonable to impose a duty of care in this situation? This involves public policy considerations. (See Hill v Chief Constable of West Yorkshire [1989] AC 53).
Step 3: Breach of Duty - The Standard of Care
Once a duty is established, you must determine if the defendant breached it. This involves a two-stage test. First, what was the required standard of care? Second, did the defendant's conduct fall below that standard?
The 'Reasonable Person' Standard
The general standard is that of the 'reasonable person', an objective test established in Blyth v Birmingham Waterworks Co [1856] 11 Ex 781. This standard can be adjusted based on the defendant's characteristics:
| Defendant Type | Standard of Care | Key Case |
|---|---|---|
| Professionals (e.g., doctors) | That of a reasonably competent professional in that field. | Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 |
| Learners (e.g., learner drivers) | That of a reasonably competent, qualified person. | Nettleship v Weston [1971] 2 QB 691 |
| Children | That of a reasonable child of the same age. | Mullin v Richards [1998] 1 WLR 1304 |
Factors in Determining Breach
To assess if the standard was met, courts weigh several factors: likelihood of harm (Bolton v Stone [1951] AC 850), severity of potential harm (Paris v Stepney Borough Council [1951] AC 367), cost of precautions (Latimer v AEC Ltd [1953] AC 643), and the social utility of the defendant's activity (Watt v Hertfordshire County Council [1954] 1 WLR 835).
📝 Exam Tip
In problem questions, you must weigh these factors against the facts. For example, if the risk of injury was low but the potential harm was catastrophic, a reasonable person would be expected to take greater precautions. Explicitly state which factors are relevant and why.
Step 4: Causation - Linking Breach to Harm
It's not enough that the defendant was negligent. The claimant must prove, on the balance of probabilities, that the defendant's breach caused the harm. This involves two distinct tests: factual causation and legal causation.
Factual Causation: The 'But For' Test
The primary test is the 'but for' test: 'but for' the defendant's negligence, would the claimant have suffered the harm? If the harm would have occurred anyway, causation is not established. The key case is Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
Legal Causation: Novus Actus Interveniens
The chain of causation can be broken by a 'new intervening act' (novus actus interveniens). This can be an act of a third party, the claimant, or a natural event. The act must be unforeseeable and independent to break the chain. See The Oropesa [1943] P 32. The law on this is underpinned by the Law Reform (Contributory Negligence) Act 1945, which allows for apportionment of blame.
⚠️ Common Mistake
A common error is to merge factual and legal causation. Always deal with the 'but for' test first. Only if factual causation is established should you then consider whether any intervening acts might break the chain of causation. Do not forget to also consider the rules on material contribution to risk from Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 where the 'but for' test is hard to apply.
Step 5: Remoteness of Damage
The final element is remoteness. The harm suffered by the claimant must not be too remote a consequence of the defendant's breach. The test, from The Wagon Mound (No 1) [1961] AC 388, is whether thetype of harm was reasonably foreseeable, even if the precise manner of its occurrence or its extent was not. The 'thin skull' rule also applies: the defendant must take their victim as they find them (Smith v Leech Brain & Co [1962] 2 QB 405).
Step 6: Defences and Remedies
After establishing the elements of negligence, consider any potential defences available to the defendant. The two main defences are:
- Contributory Negligence: Where the claimant's own negligence contributed to their harm. This is a partial defence under the Law Reform (Contributory Negligence) Act 1945, leading to a reduction in damages.
- Volenti non fit injuria (Consent): A complete defence where the claimant voluntarily assumed the risk of harm. It is difficult to establish, requiring proof of full knowledge and acceptance of the risk.
Finally, briefly discuss the likely remedy, which is usually damages intended to restore the claimant to the position they were in before the tort occurred.
Frequently Asked Questions (FAQ)
How do I structure my answer?
Use headings for each element of negligence (Duty, Breach, Causation, Remoteness) and for each claimant/defendant pair. Use the IRAC (Issue, Rule, Application, Conclusion) method within each section.
How many cases should I cite?
Aim for at least one key authority for every legal principle you state. Quality over quantity is key. For the core principles like duty and breach, citing the foundational cases is essential.
What if there are multiple defendants?
Address each defendant's liability separately. It is possible for one to be liable while another is not. Consider whether they are joint tortfeasors.
How should I handle psychiatric harm (nervous shock)?
This is a complex area. You must identify whether the claimant is a primary or secondary victim, applying the tests from Page v Smith [1996] AC 155 and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 respectively.