FE-1 Law of Torts common mistakes
FE-1 Law of Torts · Understand the traps and how to avoid them.
Answering questions about negligence by jumping straight to the standard of care and breach, without first establishing that a duty of care was owed to this particular claimant.
Candidates memorise the 'reasonable person' test and the calculus of risk (likelihood, seriousness, cost of precautions) and are eager to apply them. Because duty is usually assumed in easy practice scenarios, the habit of stating it explicitly at the start of analysis never forms.
What to do instead
Adopt a fixed four-stage skeleton for every negligence answer - duty, breach, causation (factual and legal), defences and remoteness - and write the word 'duty' before anything else. For novel duty situations, ask whether the harm was a reasonably foreseeable consequence of the defendant's conduct and whether there is proximity or a recognised duty category; for omissions and pure economic loss, note the restrictive approach before moving on.
Treating 'but for' causation as the whole of factual causation and ignoring situations where the but-for test fails, such as cumulative causes or multiple sufficient causes.
The but-for test is the first causation tool taught and is easy to apply mechanically. Questions that deliberately remove its usefulness - two independent fires, successive injuries, industrial disease cases - are then answered with an artificial 'but for' analysis that produces the wrong result.
What to do instead
After applying but-for, ask a second question: has the claimant proved, on the balance of probabilities, that this defendant's breach materially contributed to the harm? Where multiple tortfeasors each independently caused the same indivisible injury, apply the principle that each may be liable in full. Where the but-for test cannot be satisfied, say so explicitly and explain which alternative principle applies.
Confusing remoteness of damage with the existence of a duty, and applying the 'direct consequences' test in negligence.
The language of foreseeability appears in both duty and remoteness, so candidates collapse them into one issue. Candidates who have read about Re Polemis and the Wagon Mound carry over the direct-consequence rule, which belongs to the old law and to some other torts, not to modern negligence.
What to do instead
Keep the questions distinct: duty asks whether this claimant was within the class to whom care was owed; remoteness asks whether the kind of damage that occurred was reasonably foreseeable. State the rule that the defendant need not foresee the extent of the harm or the precise manner of its occurrence, only the type of injury. Note the 'eggshell skull' principle: a defendant takes the claimant as found for extent of harm.
Missing the defence of contributory negligence, or finding it and then reducing damages by an arbitrary figure rather than reasoning about relative responsibility.
Candidates treat the claimant's conduct as relevant only to breach, so once they have established the defendant fell below the standard they stop analysing. When they do apply the defence, they have no method for apportionment and guess a percentage.
What to do instead
Always run a defences checklist after establishing the prima facie case: contributory negligence, volenti, illegality, limitation. For contributory negligence, identify the specific respect in which the claimant failed to take reasonable care for their own safety, and apportion by reference to the parties' respective degrees of responsibility for the damage, not blameworthiness in the abstract. Remember it reduces rather than defeats the claim.
Applying the 'thin skull' rule to psychiatric injury claims without checking whether the claimant is a primary or secondary victim.
The thin skull rule and the foreseeability of psychiatric harm are taught together, and the distinct control mechanisms for secondary victims (close tie of love and affection, proximity in time and space, sudden shock, and a reasonably foreseeable psychiatric illness in a person of normal fortitude) get lost.
What to do instead
Classify the claimant first. A primary victim is someone in the zone of physical danger or reasonably believed to be, and recovers for foreseeable psychiatric illness without the additional controls. A secondary victim is a witness, and must satisfy each control test separately. Write the classification sentence before discussing foreseeability.
Treating occupiers' liability as identical to ordinary negligence and applying the 'reasonable person' standard without regard to the statutory framework and the special position of child entrants and independent contractors.
Occupiers' liability is often taught as an application of negligence, so candidates paraphrase the negligence test and never mention the applicable statute, the occupier's duty in respect of the state of the premises, or the warnings defence.
What to do instead
Learn the statutory structure as a checklist: who is an occupier (occupational control, not ownership), what the duty covers (the state of the premises and things done or omitted on them), the 'such care as is reasonable in all the circumstances' standard, and the specific provisions on warnings, independent contractors, children and trespassers. Cite the statute, not just the common law.
Confusing the torts of trespass to the person and negligence, and answering a battery question with a negligence analysis (or vice versa).
Both involve physical contact, so the labels blur. Candidates forget that trespass to the person is actionable without proof of damage and turns on intention, whereas negligence requires damage and turns on carelessness.
What to do instead
Ask two screening questions: was the contact intentional (or the apprehension of it), and is the claim actionable per se? If yes to both, analyse battery, assault or false imprisonment, addressing consent and lawful justification as defences. If the harm arose from inadvertence, analyse negligence. State the elements of the specific tort before applying them.
Treating private nuisance, public nuisance and the rule in Rylands v Fletcher as interchangeable, and failing to identify who can sue in each.
All three concern interference with land or escape of dangerous things, and revision notes often list them side by side without distinguishing the interests protected or the parties who have standing.
What to do instead
Separate them by interest and standing: private nuisance protects the use and enjoyment of land and is actionable by those with a proprietary interest in the affected land; public nuisance protects a class of the public and requires special damage for an individual claim; Rylands v Fletcher requires a non-natural use, accumulation, escape and foreseeable damage. Identify the claimant's interest first, then choose the cause of action.
Defending a defamation claim by arguing the statement was true in substance without addressing the other elements - the defamatory meaning, identification of the claimant, and publication to a third party.
Truth is the best-known defence, so candidates reach for it immediately. They then omit the claimant-side elements, particularly the requirement of publication to at least one third party and the distinction between libel and slander.
What to do instead
Work through the elements in order: a defamatory statement (would it lower the claimant in the estimation of right-thinking people?), reference to the claimant (would reasonable people identify them?), and publication to a third party. Only then consider defences, including truth, honest opinion, privilege and public interest, and note that each defence has its own conditions.
Ignoring vicarious liability and the distinction between an employee and an independent contractor when a worker causes harm.
Candidates see the individual who caused the harm as the only defendant, or assume any employer is automatically liable for any worker. The control test, the integration test and the multiple-factor approach, and the 'close connection' test for unauthorised acts, are then skipped.
What to do instead
Ask two questions in sequence. First, is the wrongdoer an employee or an independent contractor? Apply the modern multiple-factor test (control, integration, wage, provision of equipment, tax and business risk). Second, if an employee, was the wrongful act done in the course of employment or closely connected with it? Address both before concluding the employer is or is not liable.