NCA Torts cheat sheet

Duty is established by an established category (road users, doctor-patient, employer-employee) or by the three-stage test: foreseeability of harm, proximity of relationship, and whether it is fair, just and reasonable to impose a duty.

The reasonable person standard is objective: the defendant is judged against the ordinary competent person exercising that activity, not against the defendant's own skill level or subjective best efforts.

Special standards modify breach analysis: children are judged against a child of like age and experience; professionals against the ordinary skilled member of their profession (the Bolam-style standard).

The probability of harm and the seriousness of the likely injury are weighed against the cost and practicality of precautions and the social utility of the activity.

Res ipsa loquitur permits an inference of negligence where the thing causing harm was under the defendant's exclusive control and the accident would not ordinarily occur without negligence.

A duty is not owed to an unforeseeable claimant; the 'unforeseeable plaintiff' rule limits the class of persons to whom care is owed.

Rescue: a defendant who creates a danger owes a duty to those who foreseeably attempt rescue, and rescuers are not treated as volenti volunteers.

Standard of care for learners (e.g. provisional drivers) is that of the competent driver; inexperience is no defence to a breach of duty.

Factual causation uses the 'but for' test: the claimant must show that, but for the defendant's breach, the harm would not have occurred.

Where multiple possible causes exist and the claimant cannot prove which, the 'material contribution' approach may apply to single-agent cumulative harm (e.g. dust exposure).

For divisible harm, the defendant is liable only for the proportion of harm attributable to their contribution; for indivisible harm, joint tortfeasors are jointly and severally liable.

The 'material contribution to risk' approach is exceptional and applies where the harm is indivisible and scientific evidence cannot establish individual causation.

Intervening acts: a novus actus interveniens breaks the chain of causation only if it is free, deliberate and informed, or so unreasonable as to eclipse the original breach.

Medical negligence in treating the claimant's injury does not break the chain unless it is grossly negligent and independent of the original wrong.

Causation is a question of fact for the judge; the burden of proving causation on the balance of probabilities rests on the claimant.

Loss of chance: where the harm is the loss of a chance of a better outcome (e.g. in a commercial or litigation context), recovery may be permitted, but not for loss of chance of a medical cure.

Remoteness: a defendant is liable only for damage of a kind that was reasonably foreseeable at the time of the breach; the precise manner or extent of the harm need not be foreseeable (the 'thin skull' rule).

The thin skull (eggshell skull) rule: the defendant takes the victim as found, so unforeseeable exacerbation of foreseeable injury is compensable.

Contributory negligence is a partial defence; damages are reduced to the extent the claimant's own fault contributed to the harm (often expressed as a percentage).

Volenti non fit injuria (voluntary assumption of risk) is a complete defence requiring knowledge of the risk and a free, voluntary acceptance of it.

Illegality (ex turpi causa) may bar a claim where the claimant's own criminal conduct is inextricably linked to the injury; the court weighs the policy factors.

Statutory limitation periods bar stale claims; the limitation clock generally starts on the date of the injury, subject to a discoverability extension for latent damage.

A defendant is not liable for harm caused by an unforeseeable natural event or an unforeseeable act of a third party that the defendant could not reasonably guard against.

The 'eggshell skull' rule does not extend to unforeseeable types of damage, only to unforeseeable extent of a foreseeable type of damage.

A duty of care for a negligent statement arises where there is a special relationship between the parties, the statement is made with knowledge of reliance, and it is reasonable for the claimant to rely.

The special relationship typically requires the adviser to hold themselves out as having special skill or knowledge in the relevant field.

Pure economic loss is generally not recoverable in negligence unless it flows from physical damage to the claimant's property or from a negligent statement in a special relationship.

The 'assumption of responsibility' test: a defendant who assumes responsibility for a statement may owe a duty to the foreseeable recipient who relies on it.

Reliance must be reasonable: the claimant must show actual reliance on the statement and that such reliance was reasonable in the circumstances.

Statements made in a social context or without any professional or commercial character rarely give rise to a duty of care for economic loss.

The 'purpose' for which the statement is made limits the class of persons to whom a duty is owed: only those within the contemplated scope of the advice can recover.

Exclusion clauses may limit liability for negligent misstatement where reasonable and where they satisfy the applicable statutory reasonableness test.

Occupiers owe a duty to lawful visitors to take reasonable care to ensure the premises are safe for the purposes for which the visitor is there (the 'common duty of care').

The duty is owed to visitors, not to trespassers; trespassers are owed only a duty not to cause them injury by reckless or deliberate conduct (or such duty as statute provides).

The occupier must be prepared for children to be less careful than adults; warnings or protections must be effective for the age and understanding of the child.

An occupier may discharge the duty by entrusting work to an independent contractor where it is reasonable to do so and the occupier has taken reasonable steps to ensure competence.

Employers owe a personal, non-delegable duty to employees to provide a safe place of work, safe plant and equipment, competent fellow workers, and a safe system of work.

An employer's duty extends to the employee's psychiatric injury where it is reasonably foreseeable, and to reasonably foreseeable stress-related harm.

Vicarious liability requires an employment relationship (or a relationship akin to it) and a tort committed in the course of employment; the 'close connection' test may extend to authorised acts done wrongly.

The employer may be liable for the acts of an independent contractor only in limited circumstances (e.g. where the work is inherently dangerous or the employer retains control).

Battery requires intentional application of unlawful force to another person without consent; the force need not be hostile if it is direct and intentional.

Assault is an intentional act causing another to reasonably apprehend immediate unlawful force; words alone may negate or constitute an assault depending on context.

False imprisonment requires intentional and complete deprivation of liberty without lawful justification; the claimant need not know of the imprisonment at the time.

Trespass to land is the intentional and direct entry onto land in the possession of another without lawful authority; the claimant need not prove damage.

Defences to intentional torts include consent, self-defence (reasonable and proportionate force), lawful authority, necessity, and provocation (which may mitigate but not excuse).

Consent must be given voluntarily and with knowledge of the nature of the act; consent obtained by fraud or duress is invalid.

Self-defence requires an honest and reasonable belief in the need for force and a proportionate response; excessive force may negate the defence.

Intentional torts require intention (or sometimes recklessness) as to the act, not necessarily as to the harm caused.

Strict liability imposes liability without proof of fault; the claimant must prove the harm and the causal link, but not negligence.

The rule in Rylands v Fletcher imposes liability for the escape of a dangerous thing brought onto land in the course of a non-natural use, causing foreseeable damage.

The non-natural use requirement excludes ordinary domestic or ordinary use of land; the use must be extraordinary or inappropriate to the locality.

The escape must be of a thing likely to cause mischief if it escapes; the defendant is liable for the natural consequences of the escape.

Defences to Rylands v Fletcher include act of God, act of a stranger, statutory authority, and consent of the claimant.

Strict liability for animals: keepers of dangerous wild animals are strictly liable for harm caused by the animal, subject to statutory defences.

Product liability under statute (e.g. the Consumer Protection Act-style regime) imposes strict liability on producers for defective products causing damage, subject to development risk and other defences.

Strict liability does not generally extend to pure economic loss; the claimant must show physical damage or personal injury.

Private nuisance is an unlawful and substantial interference with the claimant's use and enjoyment of land; it requires an unreasonable interference judged by locality, duration, sensitivity and malice.

Locality is relevant: what is reasonable in an industrial area may be unreasonable in a residential area; the character of the neighbourhood may change over time.

The 'coming to the nuisance' rule: a claimant who moves near an existing activity may still complain, but the defendant's prior use is a relevant factor.

Public nuisance is an unlawful act or omission that endangers the life, health, property or comfort of a class of the public; a private individual may sue only if they suffer special damage.

Remedies for nuisance include damages (compensation for diminution in value or loss of amenity) and injunctions (prohibitory or mandatory) to restrain the interference.

The rule in Rylands v Fletcher and nuisance overlap but are distinct: nuisance protects use and enjoyment of land, while Rylands addresses isolated escapes of dangerous things.

Defences to nuisance include statutory authority, prescription (20 years' continuance), and consent; coming to the nuisance is not a complete defence.

Abatement (self-help) is a remedy allowing the claimant to remove the nuisance themselves, subject to notice requirements and reasonableness.