When tackling the duty of care questions in your SQE1 tort negligence exam, you’ll need to master the Caparo test with precision. You’re not solely reciting elements—you’re methodically analyzing whether a duty exists through reasonable foreseeability, proximity, and fairness criteria. The examiners expect you to distinguish between established duties and novel situations, supporting your arguments with relevant case law. Let’s explore how you can steer through these nuanced considerations to maximize your marks.
The Caparo Test: Breaking Down the Three-Part Framework
When tackling the Caparo test, you’re fundamentally working with a three-part framework that’s become the cornerstone of establishing duty of care in negligence cases.
You’ll need to methodically evaluate each element: reasonable foreseeability of harm, proximity between parties, and whether it’s fair, just, and reasonable to impose a duty.
Remember that foreseeability is assessed objectively—would a reasonable person in the defendant’s position predict potential harm?
When assessing foreseeability, ask: would a reasonable person standing in the defendant’s shoes anticipate the potential harm?
Proximity goes beyond physical closeness to include relationships where responsibility is assumed or control exercised.
The final element allows courts to reflect on broader societal impacts and policy concerns.
While the framework seems straightforward, you should appreciate its limitations.
Critics note its vagueness, particularly regarding proximity and fairness definitions.
Courts often prefer incremental reasoning by analogy rather than strictly applying all three elements in established categories of duty.
The Caparo test significantly reformed negligence law by replacing the earlier two-stage Anns test that had been criticized for creating inconsistent judicial decisions.
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Established Duties vs. Novel Situations: Key Distinctions
Unlike the more predictable territory of established duties, novel situations in duty of care analysis require you to steer through uncharted legal waters.
When dealing with established duties, you’ll rely on precedent—duties owed by professionals, common carriers, or landowners—where courts apply consistent rules emphasizing legal certainty.
In contrast, novel duties demand a different approach. You’ll need to analyze foreseeability, proximity, and policy considerations carefully. Courts adopt a cautious stance here, wary of opening floodgates of litigation. Judges have historically assumed this gatekeeping role due to their ability to recognize recurring case patterns.
For exam success, distinguish between these scenarios promptly. With established duties, identify the relationship and cite relevant precedent.
For novel situations, methodically apply the appropriate tests, considering vulnerability of claimants and potential indeterminate liability implications. Remember to apply the Caparo test accurately to establish the existence of duty, breach, and causation in negligence claims.
Omissions and Positive Action: When Failing to Act Creates Liability
Despite the general presumption against liability, omissions represent a critical aspect of duty of care analysis that you’ll need to master for exam success.
Remember that while doing nothing typically creates no liability, three key exceptions exist that you’ll want to identify in any scenario.
First, look for assumption of responsibility—when someone voluntarily undertakes to help and another reasonably relies on this.
Second, identify special relationships or control situations, such as instructor-pupil dynamics.
Third, watch for cases where the defendant created or adopted the risk, thereby acquiring an affirmative duty. What constitutes passive conduct versus actively adopting risk can significantly influence liability outcomes.
In novel situations, always apply the Caparo test methodically: was harm foreseeable?
Is there sufficient proximity?
Is it fair, just, and reasonable to impose a duty?
The neighbor principle established in Donoghue v Stevenson provides the foundational approach for determining when a duty of care exists in negligence cases.
Economic Loss and Pure Psychiatric Harm: Special Considerations
Moving from the domain of omissions, you’ll now face two particularly challenging areas that often appear on tort law exams: economic loss and psychiatric harm.
When tackling pure economic loss questions, remember the starting point: such losses aren’t generally recoverable in negligence. You’ll need to identify whether an exception applies—like a special relationship, voluntary assumption of responsibility, or circumstances meeting the Caparo test. Economic loss resulting from defective products is typically not recoverable in negligence, with plaintiffs needing to pursue contractual remedies instead.
Consider whether the case involves negligent misstatement (Hedley Byrne) or is analogous to a contractual obligation.
Assessing professional advice cases through their contractual character offers crucial insight into establishing duty and recovering economic losses.
For pure psychiatric harm, distinguish between primary victims (directly endangered) and secondary victims (who must satisfy the Alcock criteria).
Secondary victims need to prove a close tie of love and affection, proximity to the event, and direct perception of it.
Watch for policy considerations in both areas—courts are wary of floodgates and indeterminate liability.
Applying Duty of Care Analysis to SQE1 Scenario Questions
When approaching SQE1 scenario questions, you’ll need a systematic framework for analyzing duty of care issues that can make the difference between passing and failing your exam.
Start by identifying both parties and immediately assess whether the harm was reasonably foreseeable from the defendant’s conduct.
Next, evaluate the proximity between parties—consider their relationship, physical closeness, or dependence.
Then determine if imposing a duty is fair, just, and reasonable, weighing public policy implications carefully.
Check if the scenario falls within established categories where duty is automatically recognized (like employer-employee relationships or occupiers’ liability).
The landmark case Caparo v Dickman established the three-part test that forms the foundation for modern duty of care analysis.
Remember to support your analysis with relevant case precedents. This methodical approach demonstrates to examiners that you can apply legal principles logically to novel fact patterns.
Public Authority Liability: When Policy Defeats Duty
Public authority cases represent one of the most reliably tested corners of duty of care on SQE1, and they trip up candidates who apply the Caparo test without appreciating the additional overlay of policy considerations that courts apply to state bodies.
The starting point is the distinction between policy decisions and operational decisions. Courts are highly reluctant to impose a duty of care on public authorities in respect of how they choose to exercise—or not exercise—their statutory powers. That is a policy question. Where a public authority has made a policy decision and is implementing it operationally, liability is more readily found if something goes wrong.
The question is not whether a council or police force had the power to prevent harm—they often did. The question is whether the law should impose liability for failing to use it.
Hill v Chief Constable of West Yorkshire [1989] established that the police owe no general duty of care to the public to identify and apprehend criminals, even where a specific threat is known. The courts grounded this in public policy—imposing such a duty would lead to defensive policing and an unacceptable diversion of resources. Michael v Chief Constable of South Wales Police [2015] confirmed this principle where a victim had called 999 shortly before being killed.
However, the position changes where an assumption of responsibility can be established. If a public authority specifically undertakes to protect an identifiable individual—rather than the public at large—proximity is satisfied and a duty may arise. This is the key distinction to carry into any scenario involving police inaction or local authority failure.
For exam purposes, the moment a question involves a council, the police, social services, or a regulatory body failing to act, your instinct should be to apply Caparo carefully and flag the floodgates concern and defensive practice argument before concluding on duty. Assuming liability exists without this analysis will cost marks.
Negligent Misstatement: The Hedley Byrne Principle in Depth
The Hedley Byrne v Heller [1964] exception to the pure economic loss rule is one of the most frequently tested principles in SQE1 tort questions. You will encounter scenarios involving professional advice, valuations, references, and financial guidance—and each one requires you to work through whether the conditions for liability are met.
The general rule, as covered earlier, is that pure economic loss is not recoverable in negligence. Hedley Byrne creates an exception where three conditions are satisfied: the defendant must possess special skill or knowledge, there must be a voluntary assumption of responsibility by the defendant, and the claimant must have reasonably relied on the advice.
The relationship needs to be sufficiently close—a casual remark at a social event does not create liability. Contrast this with a surveyor’s formal valuation report commissioned by a mortgage lender, or a solicitor’s written advice on a transaction. In those cases, the professional knows their advice will be acted upon, which is precisely why the law imposes responsibility.
The Hedley Byrne principle asks not just whether advice was given, but whether the adviser effectively invited reliance—and whether that reliance was reasonable in the circumstances.
A common MCQ trap is the disclaimer scenario. In Hedley Byrne itself, the bank avoided liability because it had issued an express disclaimer—the House of Lords found a duty would have existed but for that disclaimer. Post-UCTA and CRA, disclaimers can be subject to reasonableness challenges, so be alert to exam questions where a disclaimer appears and consider whether it is actually effective.
The Caparo v Dickman [1990] case itself arose in a Hedley Byrne context—auditors producing accounts for the purpose of regulatory compliance were not liable to investors who used those accounts to make acquisition decisions, because the specific purpose of the advice did not extend to that use. This reinforces that the purpose for which advice is given matters as much as the relationship itself.
Common Duty of Care Traps in SQE1 MCQs
Understanding the doctrine is one thing. Applying it correctly under exam conditions is another. Duty of care questions in SQE1 have predictable patterns, and knowing where candidates typically lose marks is as valuable as knowing the law itself.
The most common error is conflating foreseeability with proximity. These are separate limbs of the Caparo test and must each be addressed independently. A harm may be entirely foreseeable but proximity may still be lacking—particularly in public authority cases or where the claimant is a stranger with no prior connection to the defendant. Answering that a duty exists simply because harm was foreseeable will never be a complete answer.
Candidates also regularly assume a duty exists in novel situations without applying the three-part test. Where a question involves a new type of relationship or a new category of loss, the examiner is testing whether you will pause and apply Caparo rather than jump to a conclusion. Structured analysis—even if brief—signals legal method and earns marks.
The pure psychiatric harm rules are another frequent trap. The distinction between primary and secondary victims turns on whether the claimant was within the zone of physical danger. A secondary victim watching events unfold from a safe distance must satisfy all four Alcock criteria—close tie of love and affection, proximity in time and space, direct perception (not through broadcast media), and a recognisable psychiatric illness. Missing any one of these defeats the claim.
In psychiatric harm questions, identify immediately whether the claimant was physically at risk. That single determination routes you to the correct legal framework—everything else follows from it.
Finally, watch for questions involving third party acts. The general rule is that you are not liable for harm caused by a third party’s independent criminal or negligent act. But where you have assumed responsibility for controlling that third party—a school over a pupil, a hospital over a patient—the exception may apply. The examiner is looking for you to identify the assumption of responsibility, not simply to treat the third party act as breaking the chain.
Final Thoughts
You’ll master the SQE1 Tort Negligence exam by methodically applying the Caparo test to each scenario you encounter. Consider how the Robinson v. Chief Constable case demonstrates that proximity and fairness can override foreseeability. Remember, it’s more than knowing cases but understanding when and how to apply them. Approach each question systematically, and you’ll confidently traverse duty of care analysis in even the most complex scenarios.