Contracts and Torts
Contracts
Know formation (offer, acceptance, consideration, intention, certainty), the objective theory of contract, and the distinction between pre-contractual representations and terms. Understand incorporation of terms, parol evidence, implied terms, and the construction of exclusion clauses (contra proferentem). Study vitiating factors: misrepresentation (fraudulent, negligent, innocent), mistake, duress, undue influence, and unconscionable dealing. Remedies include damages (expectation and reliance), remoteness under Hadley v Baxendale, mitigation, liquidated damages versus penalties, and equitable remedies such as specific performance and injunction.
Torts
Master negligence: duty (established categories and salient features), breach (the reasonable person and the calculus of risk), causation (the "but for" test and the March v Stramare approach), and remoteness. Understand contributory negligence, voluntary assumption of risk, and statutory reforms affecting duty and obvious risk. Know trespass to person and land, nuisance, defamation elements, and vicarious liability.
Traps and Rule of Thumb
Examiners often blend contract and tort claims arising from the same facts; identify which cause of action yields the better remedy. Watch for exclusion clauses that fail because they are not incorporated or are unenforceable under consumer law. Rule of thumb: for negligence, run duty, breach, causation, remoteness, and defences in order - do not skip causation.
Worked example: A patient suffers harm after a procedure. Establish the duty of care, the standard expected, breach, factual causation, and scope of liability; then consider whether the defence of contributory negligence reduces damages.