Tort Law

Tort Law Revision: Negligence, Occupiers & Nuisance

A case-led revision guide covering the three tort topics most likely to trip you up in exams.

Tort exams reward students who can move fast through a structured analysis without losing accuracy. The three areas below, negligence, occupiers' liability, and nuisance, appear constantly, often combined in a single problem question. This guide treats them as an examiner would: as distinct frameworks that occasionally bleed into each other.

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Negligence

The three-stage Caparo test

Every negligence answer starts with duty of care. For novel situations, the test comes from Caparo Industries plc v Dickman [1990] 2 AC 605: the damage must be foreseeable, there must be proximity between claimant and defendant, and it must be fair, just and reasonable to impose a duty. Treat these as three separate gates, not a single vague standard.

For established categories, you don't need to run the full Caparo analysis every time. A road user owes a duty to other road users. A doctor owes a duty to their patient. Saying "applying Caparo" in those situations wastes time and reads as padding.

The neighbour principle from [Donoghue v Stevenson [1932] AC 562](https://www.getcaselaw.com/case-library/7c984837-f0b3-4afc-a73f-3ec96f6e4756) underpins all of this. Lord Atkin's formulation, that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would injure your neighbour, is still the conceptual root. Examiners love a well-placed Donoghue reference early in a negligence answer, especially if the facts involve a product or a chain of supply.

Breach

Brech is judged objectively. The question is whether the defendant fell below the standard of a reasonable person in their position. Professionals are held to the standard of a reasonable professional in that field, from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Note that Bolitho v City and Hackney HA [1998] AC 232 added that the professional body of opinion relied on must have a logical basis, so Bolam isn't a blanket defence.

The factors that raise or lower the standard of care come from the cases:

• Magnitude of risk: Paris v Stepney BC [1951] AC 367 (one-eyed claimant, greater injury if blinded)
• Probability of harm: Bolton v Stone [1951] AC 850 (cricket ball, low probability)
• Cost of precautions: Latimer v AEC Ltd [1953] AC 643 (sawdust on oily floor, reasonable precaution taken)
• Social utility: Watt v Hertfordshire CC [1954] 1 WLR 835 (fire engine carrying heavy jack)

In a problem question, identify which factors are in play from the facts. Don't just list all four and move on; apply each one to what's actually described.

Causation and remoteness

Causation is where students drop marks. The but-for test (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428) is the baseline: but for the defendant's breach, would the claimant have suffered the damage? If yes, causation fails.

Material contribution cases are the hard part. Fairchild v Glenhaven Funeral Services [2002] UKHL 22 allows recovery where multiple defendants each materially contributed to the risk of a divisible disease, mesothelioma being the paradigm. This is a genuine exception to but-for, not a replacement for it.

On remoteness, the test from The Wagon Mound (No 1) [1961] AC 388 is that damage must be of a foreseeable type. The precise manner needn't be foreseeable. Hughes v Lord Advocate [1963] AC 837 illustrates this: the explosion from the paraffin lamp was unforeseeable in its exact mechanics, but burns from the lamp were foreseeable, so the defendants were liable.

Thin skull (or eggshell skull) sits alongside remoteness but operates differently. Once you establish the type of damage was foreseeable, the defendant takes the claimant as they find them. If the claimant suffers unusually severe harm because of a pre-existing condition, that's the defendant's problem.

Psychiatric injury: a specific trap

[Page v Smith [1995] UKHL 7](https://www.getcaselaw.com/case-library/72b15ac1-6d7c-4cec-84d5-c3b607e50a72) is essential for psychiatric injury questions. The claimant was a primary victim, physically in the zone of danger, so foreseeability of physical injury was enough to found liability for psychiatric harm. The primary/secondary victim distinction drives the entire analysis. Secondary victims, those who witness injury to others, face the more demanding Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 control mechanisms: close tie of love and affection, proximity in time and space, and direct perception through their own unaided senses.

If you see a problem question where someone witnesses a traumatic event from a distance, the Alcock control mechanisms kick in immediately. Work through each one.

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Occupiers' Liability

This area is governed by two statutes: the Occupiers' Liability Act 1957 (lawful visitors) and the Occupiers' Liability Act 1984 (trespassers). Students frequently mix them up under exam pressure. Keep them strictly separate.

The 1957 Act: lawful visitors

The occupier owes a common duty of care to all lawful visitors: a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they were invited. Section 2(3)(a) and (b) draw the key distinctions:

• Children: the occupier must be prepared for children to be less careful than adults. Allurements are relevant (Glasgow Corporation v Muir [1943] AC 448 in the negligence context; Jolley v Sutton LBC [2000] 1 WLR 1082 under the Acts).
• Skilled visitors: a skilled visitor (like a contractor) is expected to appreciate and guard against risks incidental to their trade.

Section 2(4)(b) is significant. If the occupier acts on faulty work done by an independent contractor, they can discharge their duty by showing it was reasonable to entrust the work and (where reasonable) they inspected or checked it. The sophistication of the check required depends on the danger involved.

Notices excluding or restricting liability must clear the Unfair Contract Terms Act 1977 (UCTA) for business premises. Under s.2(1) UCTA, death or personal injury caused by negligence cannot be excluded. Other loss exclusions must satisfy the reasonableness test. The Consumer Rights Act 2015 now governs B2C exclusion clauses in consumer contracts, so flag that distinction if the occupier is a business and the visitor is an individual consumer.

The 1984 Act: trespassers

The duty under the 1984 Act is narrower. The occupier only owes a duty if three conditions in s.1(3) are met:

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 that the trespasser is in the vicinity of the danger.
3. The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer the trespasser some protection.

If all three are satisfied, the duty is simply to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury. That is a lower standard than the 1957 Act's common duty of care.

Tomlinson v Congleton BC [2003] UKHL 47 is the anchor case here. The claimant was a trespasser who dived into a shallow lake on council land and broke his neck. The House of Lords refused to impose liability. The risk was obvious, the claimant was an adult, and the freedom to take personal risks carries weight. This case is as much about policy as doctrine, and that's worth saying in an essay or problem answer.

Occupiers' liability vs ordinary negligence

A common exam trap: the Acts apply to dangers arising from the state of the premises. If the danger arises from the occupier's activities rather than the premises themselves, ordinary negligence principles apply. Be alert to which framework applies on your facts.

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Private Nuisance

Private nuisance is an unlawful interference with a person's use or enjoyment of land, or with some right over or in connection with land. Three things to establish: indirect interference, unreasonableness, and that the claimant has a proprietary interest in the affected land.

Who can sue?

Hunter v Canary Wharf Ltd [1997] AC 655 settled this firmly. Only a person with a legal interest in the land, owner, tenant, or licensee with exclusive possession, can sue. A family member without that interest cannot. This is a quick but important point in problem questions: always check who the claimant is and whether they have standing.

Unreasonableness

Nuisance law doesn't protect against every interference. The test is whether the interference is unreasonable, assessed by balancing the competing interests. Relevant factors include:

• Duration and frequency: a one-off incident is rarely actionable (Bolton v Stone analogy applies loosely, though that's technically a negligence case)
• Locality: what is reasonable in an industrial area differs from what is reasonable in a residential one (Sturges v Bridgman (1879) 11 Ch D 852, "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey")
• Sensitivity of the claimant: abnormal sensitivity is not protected. Robinson v Kilvert (1889) 41 Ch D 88, the heat damaged unusually sensitive paper, not ordinary goods, so no nuisance
• Malice: Christie v Davey [1893] 1 Ch 316. The defendant banged on the walls deliberately to disrupt music lessons. Malice can tip conduct into nuisance.

Defences

Statutory authority is the main one. If Parliament has authorised the activity, and the nuisance is an inevitable consequence, there is no liability. Twenty years' prescription can also establish a defence, but the claimant must have known about the nuisance and taken no action.

Coming to the nuisance is not a defence. Sturges v Bridgman confirms this: the fact that the claimant moved near an existing source of interference does not remove the defendant's liability.

Public nuisance

Public nuisance is a crime as well as a tort. A private individual can only bring a civil claim if they suffer particular damage over and above that suffered by the public at large. It's tested less often in problem questions but appears in essay questions, especially those asking you to compare private and public nuisance.

Rylands v Fletcher

[Rylands v Fletcher [1868] UKHL 1](https://www.getcaselaw.com/case-library/65ecd889-4647-4539-89bf-365ec68f274b) is usually taught alongside nuisance, though it's technically a separate tort. The rule: a person who, for their own purposes, brings onto land and collects and keeps there anything likely to do mischief if it escapes, must keep it at their peril, and if they fail to do so, they are prima facie answerable for all the damage which is the natural consequence of its escape.

The requirements:

1. The defendant brought something onto the land (natural use is not enough)
2. The thing represents a non-natural use of land
3. It escaped
4. Damage resulted

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 confirmed that foreseeability of damage is required and that Rylands is a sub-species of nuisance. Transco plc v Stockport MBC [2003] UKHL 61 tightened non-natural use considerably: the House of Lords held that storing water in domestic pipes was an ordinary use of land. The threshold is high. In practice, Rylands claims succeed rarely.

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Pulling It Together in an Exam

Problem questions in this area often combine several torts. A fact pattern might involve a factory owner whose activity causes both physical damage to a neighbour's property and personal injury to a visitor on that property. That's a nuisance claim and a potential occupiers' liability claim running in parallel.

A quick diagnostic for any tort problem:

1. Who is complaining, and what have they lost? (personal injury, property damage, pure economic loss, psychiatric harm)
2. What is the relationship between the parties? (stranger, occupier/visitor, neighbour)
3. Does the harm arise from an act, omission, or the state of premises?
4. Which statutory framework, if any, applies?

Running those four questions before you write a word saves you from applying the 1957 Act to a trespasser or running a Rylands argument where there has been no escape.

For deeper practice on past paper questions in this area, the Caselaw past papers tool has model answers that show how these frameworks are applied under timed conditions. The full Tort Law topic hub is worth bookmarking for case-by-case summaries as you work through each area.