Tort Law

SQE1 Tort Law Revision Guide: Cases, Tests & Exam Technique

A focused walkthrough of every tort topic the SQE1 tests, with the cases and frameworks that actually come up.

Tort law is one of the heavier topics on SQE1 Functioning Legal Knowledge, and the questions are designed to trip you up on the precise test, not the general idea. Knowing that negligence requires duty, breach, causation, and damage is not enough. You need to know which sub-test applies, how the courts have refined it, and where the examiners like to hide the trap.

This guide works through the main topic areas in the order you should probably revise them: negligence first (it's the biggest), then the economic and psychiatric injury rules that sit on top of it, then occupiers' liability, nuisance, Rylands v Fletcher, and a few smaller heads. It's written for the SQE1 syllabus as it stands for the 2024/25 assessments.

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Negligence: The Backbone

Duty of Care

Every negligence problem starts here. The modern test comes from Caparo Industries plc v Dickman [1990] 2 AC 605, which asks three things:

1. Was the damage reasonably foreseeable?
2. Was there sufficient proximity between the parties?
3. Is it fair, just, and reasonable to impose a duty?

For most physical injury scenarios involving established categories (driver and road user, manufacturer and consumer, employer and employee), you do not need to work through all three stages. The courts treat these as settled. Donoghue v Stevenson is the foundation: Lord Atkin's neighbour principle established that a manufacturer owes a duty to the ultimate consumer where the product could cause harm and the consumer had no opportunity to inspect it. In the exam, you'll rarely be asked to re-argue that duty. You'll be asked to spot whether a novel situation extends beyond it.

For novel situations, work through Caparo explicitly. Proximity tends to be the battleground. Physical proximity is not enough on its own; the courts also look at relational proximity (assumed responsibility) and causal proximity.

Breach

The standard is the reasonable person. But the reasonable person shifts depending on context:

• A defendant with specialist skill is judged against the standard of the reasonable competent practitioner in that field (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).
• A learner driver is judged against the standard of the competent driver, not a novice (Nettleship v Weston [1971] 2 QB 691).
• Children are judged against the standard of an ordinary child of the same age (Mullin v Richards [1998] 1 WLR 1304).

Factors the court weighs in deciding whether the reasonable person would have taken precautions (Blyth v Birmingham Waterworks [1856]):

• The probability of harm
• The severity of the potential harm
• The burden of taking precautions
• The social utility of the defendant's conduct

Bolton v Stone [1951] AC 850 is the classic exam case here. A cricket ball hit over a high fence onto a road. The probability was low, the precautions would have been expensive and disruptive, the activity had social value. No breach. Contrast that with Paris v Stepney Borough Council [1951] AC 367: a one-eyed worker was given no goggles, despite the catastrophic consequence if something hit his good eye. The severity of potential harm elevated the precaution required.

Causation

Causation splits into two parts: factual causation and legal causation (remoteness).

Factual causation is the but-for test: but for the defendant's breach, would the claimant have suffered the damage? Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. The deceased would have died even with prompt treatment. The breach did not cause the death. Clean application.

Where multiple causes are in play, it gets harder:

• Material contribution to damage: where it is impossible to isolate a single cause but the defendant's breach materially contributed to the overall harm (Bonnington Castings v Wardlaw [1956] AC 613).
• Material contribution to risk: the controversial route in McGhee v National Coal Board [1973] 1 WLR 1 and Fairchild v Glenhaven Funeral Services [2002] UKHL 22. Used in mesothelioma cases where scientific uncertainty makes but-for impossible. The SQE1 exam will not expect you to argue the policy debate, but it will expect you to know the exception exists and to name it.
• Divisible vs indivisible damage: Bonnington (divisible, apportionment possible) contrasts with Fairchild (indivisible, each employer fully liable subject to Barker v Corus [2006] adjustments). This is a nuance worth knowing.

Remoteness is the Wagon Mound (No 1) [1961] AC 388 test. The type of damage must be reasonably foreseeable. The exact manner and extent need not be. So if you foresee property damage by fire, you're liable even if the fire spreads further than expected. But if the damage is of an entirely different type from anything foreseeable, you're not.

The thin skull rule sits alongside this: you take your victim as you find them. If a claimant has a pre-existing condition that makes their injury worse, you're liable for the full extent. Smith v Leech Brain & Co [1962] 2 QB 405 is the authority.

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Psychiatric Injury

This is a classic exam ambush. The rules are strict and hierarchical.

Primary victims are those within the zone of physical danger, or those who reasonably fear for their own safety. The test is simply whether physical injury was foreseeable. See Page v Smith: the claimant was involved in a minor road collision and suffered a recurrence of chronic fatigue syndrome. He was a primary victim. No psychiatric injury was foreseeable, but physical injury was. That was enough.

Secondary victims witness injury or danger to someone else. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 imposes four requirements:

1. A close tie of love and affection with the primary victim (presumed for spouse, parent, child; proven otherwise)
2. Proximity to the accident or its immediate aftermath in time and space
3. Direct perception by sight or hearing (not via broadcast)
4. The psychiatric injury must be induced by a sudden shocking event

Know these four cold. The SQE1 question will often present someone who fails on one of them, and you need to say precisely which.

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Pure Economic Loss

Generally not recoverable in negligence for physical acts. The rule comes from Spartan Steel & Alloys v Martin & Co [1973] QB 27. A cable was negligently cut; the claimant lost a melt in progress (recoverable, physical damage) and profit from future melts they could not run (not recoverable, pure economic loss).

The exception is negligent misstatement: Hedley Byrne & Co v Heller & Partners [1964] AC 465. A duty of care can arise in respect of pure economic loss where:

• The defendant has special skill or expertise
• The defendant voluntarily assumes responsibility to the claimant
• The claimant reasonably relies on that statement
• It is reasonable in all the circumstances for the claimant to rely

This is extended in the professional liability context. A solicitor drafting a will owes a duty to intended beneficiaries even though there's no contract with them: White v Jones [1995] 2 AC 207. The rationale is assumption of responsibility. Know the phrase.

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Occupiers' Liability

Two statutes. Two visitor categories. Do not mix them up.

Occupiers' Liability Act 1957

Covers lawful visitors. The occupier owes the common duty of care: to take reasonable care to ensure the visitor is reasonably safe for the purposes for which they are invited or permitted to be there.

Key points:

• Children are owed a higher standard because they're less careful (Glasgow Corporation v Muir [1943])
• An expert visitor (plumber, electrician) is expected to appreciate and guard against risks incidental to their trade (Roles v Nathan [1963] 1 WLR 1117)
• Occupiers can discharge the duty by giving adequate warning, but the warning must be enough to enable the visitor to be reasonably safe

Occupiers' Liability Act 1984

Covers trespassers (and others who are not lawful visitors). The duty is narrower. It only arises if:

1. The occupier is aware of the danger or has reasonable grounds to believe it exists
2. The occupier knows or has reasonable grounds to believe a trespasser is in the vicinity of the danger
3. The risk is one against which the occupier may reasonably be expected to offer some protection

Child trespassers come up a lot. Tomlinson v Congleton Borough Council [2003] UKHL 47 is the leading modern case. The House of Lords held that the council was not liable to an adult who dived into a lake and broke his neck. The risk was obvious; he chose to ignore warnings. The 1984 Act does not make occupiers the insurer of every trespasser.

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Private Nuisance

Private nuisance protects the use and enjoyment of land. The claimant must have a proprietary interest in the affected land (confirmed in Hunter v Canary Wharf [1997] AC 655, which excluded a licensee's claim).

The elements:

• An indirect interference with the claimant's use or enjoyment of land
• Unreasonable interference, judged by balancing factors:

- Duration and frequency - Locality (what's normal in the area) - Severity of the interference - Whether the defendant acted maliciously - Whether the claimant is abnormally sensitive

Sensitivity matters. If the claimant's use is unusually sensitive, only a nuisance that would affect a normal use is actionable: Robinson v Kilvert [1889] 41 Ch D 88. But once a nuisance to a normal use is established, the claimant can recover for additional loss from sensitivity.

Who can be sued? The creator of the nuisance can always be sued. The occupier can be sued if they adopted or continued the nuisance. A landlord can be sued if they authorised it.

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Rylands v Fletcher

Rylands v Fletcher is strict liability for the escape of a dangerous thing brought onto land. The elements from the original case, as refined by Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264:

1. The defendant brings onto their land something likely to do mischief if it escapes
2. It represents a non-natural use of the land
3. It escapes
4. Damage of the relevant type was reasonably foreseeable

Cambridge Water added that foreseeability of damage is required even for strict liability. The defendant knew solvents were stored; the type of damage caused (contamination of a borehole) was not foreseeable on the facts. No liability.

Non-natural use is the element that generates most argument. Keeping a large reservoir is non-natural. Domestic water pipes are not. The test is contextual and has been given a restrictive reading by the courts.

Rylands claims are rare in practice, but they come up on SQE1 because the examiners want to see whether you can distinguish strict liability from negligence and identify the escape requirement.

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Defences: The Exam Checklist

For any negligence or nuisance question, work through the defences:

Contributory negligence (Law Reform (Contributory Negligence) Act 1945): not a complete defence. Damages are reduced proportionately. The claimant must have failed to take reasonable care for their own safety.

Volenti non fit injuria: a complete defence. The claimant must have known of the specific risk and freely consented to it. Knowledge alone is not enough: Smith v Baker & Sons [1891] AC 325. An employee who knew of a risk but had no real choice did not consent.

Illegality (ex turpi causa): the claimant cannot recover where the claim arises from their own illegal act. Patel v Mirza [2016] UKSC 42 set out a balancing approach. The courts look at whether enforcing the claim would be harmful to the integrity of the legal system. This is harder to apply than it sounds, which is why the SQE1 tends to use cleaner facts.

Limitation: three years from the date of knowledge for personal injury (Limitation Act 1980, s.11). Six years for other tort claims. The date of knowledge rule in personal injury can extend time where the claimant did not know the cause of their injury.

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How the Exam Actually Frames These Questions

SQE1 uses single best answer questions. Tort questions typically set up a scenario and ask you what the outcome is, or which party has the stronger argument, or what the court would decide on a specific element.

A few things that consistently trap students:

• Conflating primary and secondary victim rules in psychiatric injury questions
• Applying the 1957 Act to trespassers or the 1984 Act to lawful visitors
• Forgetting that Rylands requires an escape from the defendant's land
• Confusing the Bolam test (whether to advise of a risk) with Montgomery v Lanarkshire Health Board [2015] UKSC 11, which replaced Bolam for patient consent
• Missing that pure economic loss is generally not recoverable, then failing to spot the Hedley Byrne exception in the facts

The trick is to work from structure. In the exam, every negligence question should prompt the same mental walkthrough: duty (established or novel?), breach (reasonable person, adjusted how?), factual causation (but-for or exception?), remoteness (foreseeable type?), damage (physical, psychiatric, economic?), defences. Do not skip steps because one seems obvious. The mark is often in the step that looks obvious.

You can work through real SQE1-style questions on these topics at Practise with real SQE1 questions, and the full case library for tort is at Tort Law.