NCA Torts common mistakes
NCA Torts · Understand the traps and how to avoid them.
When asked whether a duty of care exists in a novel situation, candidates simply recite the neighbour principle and conclude duty exists without working through the full three-stage test (foreseeability of harm, proximity, and whether it is fair, just and reasonable to impose a duty).
Most revision notes lead with Donoghue v Stevenson, so under time pressure candidates reproduce the neighbour principle as if it were the complete test and stop there, treating the later stages as optional commentary rather than part of the analysis.
What to do instead
Use a fixed three-line scaffold for every novel-duty question: (1) reasonable foreseeability of damage to this claimant; (2) proximity of relationship; (3) fair, just and reasonable - and always address stage three, citing at least one policy factor (e.g. floodgates, defensive practice, conflicting duties) for or against. Reserve the neighbour principle for establishing that a duty concept applies at all.
Candidates state the professional standard of care as 'the ordinary reasonable person' and then judge a doctor, solicitor or other skilled defendant by lay standards, or alternatively hold them to perfection, without citing the Bolam/Bolitho framework.
The general reasonable-person standard is learned first and becomes a default, and candidates conflate 'a responsible body of professional opinion' with 'the majority view' or with 'what the reasonable person would do'.
What to do instead
For any skilled defendant, run a two-step test explicitly: the defendant is judged against the ordinary skilled person exercising and professing that special skill; they are not negligent if they acted in accordance with a practice accepted as proper by a responsible body of that profession, even if a rival body disagrees. Add that the practice must withstand logical analysis (Bolitho) and that the duty to warn of risks is judged by the same standard.
On causation, candidates identify the breach and the harm and assert 'but for the breach the harm would not have happened' as a conclusion, without actually testing the counterfactual, and without separating factual from legal causation when multiple possible causes exist.
The 'but for' formula is short and memorable, so it gets recited as a label rather than applied as a hypothetical comparison; candidates also skip the legal-causation step because they believe factual causation resolves the issue.
What to do instead
Always write out the counterfactual explicitly ('absent the breach, on the balance of probabilities the harm would not have occurred because...'). Where 'but for' fails because of multiple cumulative or alternative causes, say so and move to material contribution or increased risk. Then treat legal causation as a separate heading and apply remoteness and novus actus there.
Candidates treat the 'egg-shell skull' rule and the 'thin skull' claimant as applying to everything, so they conclude a defendant is liable for any and all consequences of negligence regardless of type of damage, failing to distinguish unforeseeable extent of a recognised kind of harm from unforeseeable kinds of harm.
The thin-skull maxim is taught as a memorable slogan ('take your victim as you find him') and candidates over-extend it, forgetting that it protects against unusual vulnerability, not against unforeseeable categories of loss.
What to do instead
Frame remoteness as a two-question test: is the kind of damage reasonably foreseeable, and is the damage of a type that a reasonable person would not consider too remote? Then state that once a recognised kind of harm is foreseeable, the defendant is liable for its full extent even if greater than expected, and that unforeseeable kinds of damage (and unforeseeable intervening acts) remain outside liability.
When a defendant raises contributory negligence, candidates either treat it as a complete defence that defeats the claim, or ignore it entirely because they have already found the defendant negligent, rather than apportioning damages.
Defences are mentally filed as 'all or nothing', and volenti, contributory negligence and illegality are blurred together because they are revised in one block.
What to do instead
Keep a defence checklist with the effect of each: contributory negligence reduces damages by whatever is just and equitable (partial), volenti is a complete defence requiring knowledge and voluntary acceptance of the risk, and illegality bars or reduces depending on the policy analysis. For contributory negligence, always state the apportionment and give a reason for the percentage split, and check whether the claimant's conduct contributed to the damage as well as to the incident.
On negligent misstatement, candidates find a duty of care whenever a statement was wrong and the claimant relied on it, without establishing the special relationship, the assumption of responsibility, reasonable reliance and the absence of a disclaimer.
The general negligence framework is applied mechanically to words, and candidates do not appreciate that pure economic loss from statements requires a more restrictive control mechanism than physical damage.
What to do instead
Use the Hedley Byrne checklist as a gateway: (1) special relationship of proximity; (2) reasonable reliance by the claimant for a known purpose; (3) assumption of responsibility by the adviser; (4) no effective exclusion; (5) loss is economic and consequential on the reliance. Then address whether the statement was made to the claimant or a class including them, and whether a disclaimer or statutory reasonableness test defeats reliance.
Candidates apply occupiers' liability without first classifying the entrant (visitor or trespasser) and without identifying the correct statutory regime, and they state the duty as a duty to make the premises completely safe.
The two statutes look similar in structure and candidates memorise the wording of the duty without anchoring it to entrant status, and they confuse the duty to take reasonable care with a guarantee of safety.
What to do instead
Begin every occupiers' question by classifying the entrant and naming the governing statute for each class (visitors under the occupiers' liability legislation; non-visitors under the duty owed to trespassers). Then state the duty as taking such care as is reasonable in all the circumstances, and analyse the relevant factors (likelihood of injury, gravity, purpose of entry, age, warnings, independent contractors) rather than asserting a duty to make safe.
On employers' liability, candidates assert that the employer is vicariously liable for every act of an employee, including independent contractors and acts outside the scope of employment, and they ignore the employer's personal, non-delegable duties.
Vicarious liability is the most vivid concept in the topic and candidates collapse it with personal liability, forgetting the control test, the course-of-employment requirement and the distinction between employees and independent contractors.
What to do instead
Separate the two routes in every answer: (a) personal liability - provide competent staff, safe premises and plant, a safe system of work, and effective supervision, all of which are non-delegable; (b) vicarious liability - identify the employment relationship, then ask whether the tort was committed in the course of employment using the close-connection test for unauthorised acts. State expressly that independent contractors do not generally generate vicarious liability, subject to non-delegable duty exceptions.
Candidates treat every intentional tort as requiring proof of hostility or malice, and they answer battery questions by focusing on the injury rather than on the absence of consent to contact.
The word 'intentional' is read in its everyday sense, and criminal-law intuitions about assault and battery are imported into tort, where hostility is not a required element of battery and damage is not required.
What to do instead
State the elements cleanly: battery is the intentional application of unlawful force to another, requiring intent to make contact (not intent to harm) and absence of consent or lawful justification; assault is an act causing a reasonable apprehension of immediate unlawful force; false imprisonment is complete deprivation of liberty without lawful justification. Then run the defences (consent, necessity, self-defence, lawful authority) as a separate step, and remember that nominal damages are available without proof of injury.
In nuisance questions, candidates analyse the defendant's conduct in isolation and conclude liability because the activity was unreasonable or caused annoyance, without weighing the locality, the duration and intensity, the sensitivity of the claimant's use, and without distinguishing private nuisance from Rylands v Fletcher and statutory nuisance.
Nuisance is taught alongside negligence, and candidates import a reasonableness-of-conduct test instead of the unreasonable-interference-with-use-and-enjoyment test, and they forget that the remedy analysis (injunction versus damages) is separately examinable.
What to do instead
Structure nuisance as: (1) the claimant's interest in land and the defendant's use; (2) unreasonable interference - apply locality, duration, intensity, malice, physical damage versus amenity, and abnormal sensitivity (which does not create liability); (3) defences (prescription, statutory authority, consent); (4) remedy - consider injunction, abatement and damages, and note that damages may be measured by diminution in value or cost of reinstatement. Keep Rylands v Fletcher as a separate heading requiring a non-natural use, escape and foreseeable damage.