Ghana School of Law PLC: Law of Torts (GLC) common mistakes
Ghana School of Law PLC: Law of Torts (GLC) · Understand the traps and how to avoid them.
Answering a negligence problem by asserting 'there was a duty of care' and moving straight to breach, without testing whether the Caparo ingredients (foreseeability of harm, proximity, and fair, just and reasonable imposition) are actually satisfied on the facts, especially in novel situations such as omissions, public bodies, or psychiatric harm.
Candidates memorise Donoghue v Stevenson and the neighbour principle as a slogan and treat duty as a formality. Because duty is usually uncontested in textbook examples, they never practise the analytical step, and under exam pressure they collapse it into a one-line assertion. The Caparo test is also often recited as a checklist without applying each limb to the specific parties and harm.
What to do instead
For every negligence problem, write a short dedicated duty paragraph that (a) states the established category if one exists (road users, doctor-patient, employer-employee) and (b) where the situation is novel or an omission, works through each Caparo limb against the named parties, citing the facts. Practise with at least three novel-duty scenarios (e.g. a rescuer, a local authority inspecting premises, a defendant who failed to act) so that the reasoning becomes automatic.
Stating the standard of care as 'the reasonable person' but then judging the defendant by hindsight, by the outcome, or by an unrealistically high standard, and failing to adjust the standard for the specific class of defendant (child, professional, learner driver) or to weigh the four breach factors (magnitude of risk, practicability of precautions, social utility, cost).
The reasonable person test looks simple, so candidates skip the structured analysis and instead reason backwards from the harm suffered: because the claimant was injured, the defendant must have been careless. They also conflate the objective standard with a subjective one, or forget that professionals are judged by a responsible body of professional opinion (Bolam-type reasoning) rather than by the court's own view of best practice.
What to do instead
Use a fixed breach template: identify the relevant standard (ordinary reasonable person, professional, child, learner), then apply the risk factors one by one to the facts, then state the conclusion. Where a professional is involved, expressly ask whether the defendant acted in accordance with a practice accepted as proper by a responsible body of practitioners. Always separate 'was there breach?' from 'what harm resulted?' so outcome bias cannot creep in.
Treating causation as a single question and answering only 'but for the defendant's breach, the claimant would not have been harmed', without addressing multiple causes, intervening acts, or the distinct role of remoteness. Candidates also apply the 'but for' test to cases of cumulative or indeterminate cause where it is unworkable, and omit material contribution or loss of chance analysis.
The 'but for' formula is the first thing taught and the easiest to memorise, so it becomes the only tool used. Candidates do not appreciate that factual causation and legal causation (remoteness) are separate hurdles, and they overlook that in some cases (e.g. multiple sufficient causes, industrial disease) the courts depart from 'but for'. Intervening acts by the claimant, a third party, or a natural event are frequently ignored altogether.
What to do instead
Structure causation in three labelled stages: (1) factual causation, choosing between 'but for', material contribution, and material increase in risk and explaining why the chosen test fits; (2) intervening acts, asking whether the later event was a foreseeable consequence or a free, deliberate and informed act that breaks the chain; (3) remoteness, applying the Wagon Mound foreseeability-of-type-of-harm test. Do at least one practice problem where 'but for' fails and a different test is needed.
Applying the Wagon Mound remoteness test as if the defendant is liable for any harm that was foreseeable in some broad sense, or conversely treating any unexpected extent or severity of harm as too remote. Candidates fail to distinguish the type of damage from its extent, and do not separate remoteness from the egg-shell-skull rule.
The phrase 'foreseeable kind of damage' is remembered but its boundaries are not understood. Candidates either stretch foreseeability so far that remoteness never excludes anything, or they refuse recovery whenever the precise injury was unusual. The relationship between remoteness and the thin-skull principle is rarely grasped, so the two rules are applied inconsistently.
What to do instead
State the rule precisely: the defendant is liable only for damage of a kind that was reasonably foreseeable, but once that kind is foreseeable the defendant takes the victim as found as to the extent of the injury. Apply this in two steps: identify the kind of damage actually suffered (physical injury, psychiatric injury, property damage, economic loss), ask whether that kind was foreseeable, then, if yes, note that unusual severity or a pre-existing vulnerability does not defeat the claim. Contrast a case where the kind of damage was unforeseeable to show the limit.
Raising contributory negligence, volenti non fit injuria, and illegality as a single undifferentiated 'defence' paragraph, without distinguishing their elements, their effect (partial reduction versus complete bar), or the burden of proof. In particular, treating a claimant's careless exposure to risk as consent.
All three are defences to negligence, so candidates group them together and list them rather than analyse them. The crucial distinction between knowledge of risk and voluntary acceptance of it is subtle, and the maxim volenti non fit injuria is often applied loosely to any claimant who knowingly did something dangerous. Candidates also forget that contributory negligence apportions damages rather than defeating the claim.
What to do instead
Write a separate short paragraph for each defence actually raised on the facts. For contributory negligence, identify the claimant's lack of care for their own safety and state that damages are reduced. For volenti, prove (a) knowledge of the precise risk, (b) a free and voluntary agreement to run it, and (c) that the defence is not defeated by statute or by the nature of the relationship (e.g. employer-employee, rescuer). For illegality, identify the necessary causal link between the illegal act and the injury. State the effect of each defence explicitly.
Conflating occupiers' liability with ordinary negligence and with trespass, and failing to identify the entrant's status correctly. Candidates apply the Occupiers' Liability Act 1957 to trespassers, or the 1984 Act to lawful visitors, and omit the common duty of care, warnings, independent contractors, and the defence of contributory negligence under the statutes.
The two occupiers' liability regimes are taught together and their trigger facts look similar. Candidates remember 'occupier owes a duty' but not the statutory distinction between visitors and non-visitors, so they pick the wrong Act. They also forget that the 1957 Act implies a common duty of care owed to all visitors, subject to the occupier's ability to extend, restrict, or exclude it by agreement or notice, and that the 1984 Act duty is limited to risks of which the occupier knows or ought to know.
What to do instead
Before analysing, classify the entrant expressly: visitor (invitee, licensee, person with lawful authority) under the 1957 Act, or trespasser/non-visitor under the 1984 Act. Then apply the correct statutory standard: for visitors, the common duty of care and the specific provisions on warnings, independent contractors, and exclusion; for trespassers, the knowledge-of-risk and reasonable-care test. State the effect of any warning and any contributory negligence. Practise with a scenario involving a child trespasser and a scenario involving an independent contractor to test both regimes.
Treating vicarious liability as automatic once an employee causes harm, without establishing the employment relationship (distinguishing employee from independent contractor) and without applying the 'close connection' or 'field of activities' test to whether the wrongful act was done in the course of employment. Candidates also confuse personal liability of the employer with vicarious liability.
The label 'employer' is taken at face value, and the course-of-employment question is reduced to 'was he at work?'. The modern case law extending vicarious liability to relationships akin to employment and to intentional wrongdoing is often unknown, so candidates cannot handle a scenario involving a borrowed worker, a subcontractor, or an employee committing an assault.
What to do instead
Answer in three steps: (1) identify the relationship using the multiple-factor test (control, integration, economic reality, mutuality of obligation) and state whether the wrongdoer is an employee, an independent contractor, or in a relationship akin to employment; (2) ask whether the act was done in the course of employment or was so closely connected with it that it is fair to hold the employer liable; (3) separate the employer's own negligence (e.g. failure to train or supervise) from vicarious liability. Use a scenario with an intentional wrong to test the close-connection test.
Answering a trespass to the person question by describing all three torts generically, without separating the elements: assault as an apprehension of immediate unlawful force, battery as the actual application of unlawful force, and false imprisonment as complete deprivation of liberty without lawful justification. Candidates also miss the requirement of intention and the relevance of consent and lawful authority.
The three torts are taught as a cluster and share the theme of interference with the person, so candidates blur them. They also import negligence concepts (damage, foreseeability) into intentional torts where they do not belong, and they overlook that assault requires the claimant's apprehension, not the defendant's hostility, and that false imprisonment requires the restraint to be total.
What to do instead
For each tort, write the elements as a checklist and apply them to the facts: for assault, the defendant's act, intention, and the claimant's reasonable apprehension of immediate unlawful force; for battery, the intentional application of unlawful force without consent; for false imprisonment, the intentional and complete restriction of the claimant's freedom of movement without lawful justification. Deal separately with defences (consent, lawful authority, necessity). Note expressly that hostility is not required and that damage need not be proved.
Mixing up private nuisance, public nuisance, and the rule in Rylands v Fletcher, and failing to identify the correct claimant, the interest protected, and the remedy. Candidates also treat nuisance as a form of negligence and ignore the requirement of unreasonable interference, the relevance of locality, sensitivity of the claimant, and the defence of statutory authority.
The three heads are taught in one chapter and all concern interference with land, so candidates use the labels interchangeably. They do not appreciate that private nuisance protects the use and enjoyment of land and requires the claimant to have an interest in the land, that public nuisance protects a class of the public and may support a claim only where the claimant suffers special damage, and that Rylands v Fletcher is a strict-liability rule for the escape of a dangerous thing brought onto land.
What to do instead
Begin by classifying the claim: is the interference with the use and enjoyment of land (private nuisance), a nuisance affecting a section of the public (public nuisance), or an escape of a dangerous thing from the defendant's land (Rylands v Fletcher)? Then apply the elements specific to that head: for private nuisance, unreasonable interference assessed by locality, duration, sensitivity, and malice, and the claimant's proprietary interest; for public nuisance, the class affected and special damage; for Rylands, the accumulation of a dangerous thing, its escape, and non-natural use, with the recognised defences. State the remedy appropriate to each.
Answering a defamation question without working through the elements of the tort and the available defences in the correct order, and without distinguishing libel from slander. Candidates also fail to address the requirement of publication to a third party, the meaning of the statement, and the specific defences of truth, honest opinion, and privilege, or they misapply the serious harm threshold.
Defamation has a distinctive vocabulary and a statutory framework, so candidates who have not drilled the sequence default to a general discussion of reputation and free speech. They confuse the claimant's burden (establishing the elements) with the defendant's burden (proving a defence), and they forget that a defamatory statement must be published to at least one person other than the claimant.
What to do instead
Use a fixed sequence: (1) libel or slander; (2) the statement is defamatory in its meaning; (3) it refers to the claimant; (4) it was published to a third party; (5) serious harm to reputation. Then address each defence raised on the facts, with the burden on the defendant: truth, honest opinion, absolute or qualified privilege, and any statutory or public-interest defence. For each defence, state its elements and apply them to the facts. Practise with a scenario involving a statement made in a privileged context and one involving an opinion.