Tort Law (ToL): essential SQE1 knowledgeTort Law is examined in FLK1 and represents 14–20% of the 180-question paper, approximately 25–36 questions. It frequently overlaps with Dispute Resolution, Con…
Tort Law is examined in FLK1 and represents 14–20% of the 180-question paper, approximately 25–36 questions. It frequently overlaps with Dispute Resolution, Contract Law and Ethics. Official SQE1 blueprint
The official syllabus covers:
A claimant must establish:
Each element must be analysed separately.
A duty may be established through:
The court does not apply the full Caparo test mechanically where an established category already governs the case.
Common established categories include:
The issue may still be:
For a novel duty, consider:
These factors are not independent boxes applied without regard to authority and policy.
Key case:
The relevant question is whether a reasonable person in the defendant’s position would foresee a risk of injury to someone in the claimant’s position.
The precise manner or full extent of injury need not be foreseeable.
A mere possibility may be insufficient where the risk is extremely remote and reasonable precautions were unnecessary.
Proximity may be:
Relevant considerations include:
Physical closeness alone does not always establish legal proximity.
Policy considerations may include:
The question is not simply whether compensation seems morally desirable.
There is generally no duty to rescue or prevent harm caused by another person.
A duty may arise where the defendant:
A person who creates a hazard may have to take reasonable steps to prevent resulting harm.
A defendant is not ordinarily liable merely for failing to prevent a third party’s wrongdoing.
Liability may arise where:
Key authorities include:
Public bodies are generally subject to ordinary negligence principles.
A statutory power does not automatically create a private-law duty.
Candidates should distinguish:
The existence and purpose of the statutory scheme remain relevant.
Different emergency services may attract different established rules.
Relevant issues include:
Candidates should avoid assuming that all emergency services have identical immunity or duties.
The defendant must exercise the care of a reasonable person in the circumstances.
The standard is generally objective.
The court considers:
A small risk may not require extensive precautions.
The court considers:
Key authority:
The mere occurrence of injury does not prove that the risk required precautions.
Greater precautions may be required where the defendant knows the claimant is especially vulnerable.
Key authority:
The probability may be modest, but the potential consequences may justify additional care.
The court balances the risk against:
Key authority:
The defendant need not eliminate every risk, only take reasonable precautions.
Greater risk may be reasonable where the activity has substantial social or emergency value.
Key authority:
Social utility is relevant but does not excuse careless conduct automatically.
A child is judged against the standard of a reasonable child of the same:
The child is not ordinarily judged by the adult standard merely because an adult would have acted differently.
Key authority:
An inexperienced adult undertaking an activity requiring a particular level of competence is generally judged against the standard of a reasonably competent person performing that activity.
Examples include:
Key authority:
Lack of experience does not reduce the required standard.
A professional is generally judged against the standard of a reasonably competent member of that profession or speciality.
The claimant need not prove the defendant was the worst or below average. The issue is whether the conduct fell below the legally required standard.
A professional may avoid breach where acting in accordance with a responsible body of professional opinion.
However, professional opinion is not automatically decisive.
The court may reject an opinion lacking a logical or defensible basis.
Key authorities:
For material risks and reasonable alternatives, the professional standard is shaped by Montgomery v Lanarkshire Health Board.
A doctor should take reasonable care to ensure the patient is aware of:
A risk is material where:
Limited therapeutic exceptions should be applied narrowly.
Compliance with common practice is evidence of reasonable care but not conclusive.
The court may find a widespread practice negligent where it exposes people to avoidable risk.
Key authority:
Similarly, departure from common practice is not automatically negligent if objectively reasonable.
Breach of a statutory obligation may provide:
Not every statutory breach creates an actionable civil claim.
Candidates should examine:
The doctrine may assist where:
It permits an inference of negligence and may shift the evidential burden.
It does not automatically reverse the legal burden of proof.
Key authority:
The ordinary test is:
But for the defendant’s breach, would the harm have occurred?
If the harm would have occurred in any event, factual causation is not established.
Key authority:
Where two independent causes would each have been sufficient to cause the same harm, strict application of the but-for test may produce injustice.
The courts may adapt causation analysis where:
The precise solution depends on the type of harm and evidence.
Where several factors cumulatively cause an indivisible injury, the claimant may succeed by showing the breach made a material contribution to the injury.
Key authority:
A contribution must be more than negligible.
Where harm is divisible, damages may be apportioned according to the injury caused by each source.
Examples may include:
The defendant is liable only for the part attributable to its breach where the evidence permits division.
In exceptional cases, particularly involving mesothelioma, a claimant may establish causation by showing the defendant materially increased the risk of the disease.
Key authorities:
This is an exception, not the general test for every scientific uncertainty.
A claimant generally cannot recover for losing a chance of a better physical outcome where they cannot prove on the balance of probabilities that negligence caused the injury.
Key authority:
Loss-of-chance damages may be available in some economic or professional-negligence contexts involving third-party decisions.
An intervening act may break the chain of causation where sufficiently:
Potential intervening acts include:
The court asks whether the later act falls within the risk created by the defendant.
Reasonable conduct in response to danger does not ordinarily break the chain.
The chain may be broken where the claimant acts in a wholly unreasonable manner unrelated to the risk.
A claimant’s unreasonable conduct may instead support contributory negligence without entirely defeating causation.
Negligent medical treatment following an initial injury will not ordinarily break the chain unless it is so independent and extraordinarily potent that the original tort is no longer an effective cause.
The original defendant may remain liable for foreseeable complications of treatment.
Deliberate third-party conduct may break the chain, but not where:
The scope of duty is important.
Damage is recoverable where the type or kind of damage was reasonably foreseeable.
The precise:
need not be foreseeable.
Key authority:
The defendant must take the claimant as found.
If personal injury of the relevant type was foreseeable, the defendant may be liable for its full extent even where unusually severe because of:
Key authority:
If the type of damage is foreseeable, an unusual mechanism may not make the loss too remote.
Key authority:
But where the actual type of harm is fundamentally different, liability may fail.
Even where factual causation exists, liability extends only to loss within the purpose or scope of the duty breached.
This is particularly important in:
The court asks what risk the duty was supposed to protect against.
Key authority:
Negligence generally requires legally recognised damage, such as:
Mere:
is not ordinarily actionable in negligence.
The purpose is to place the claimant, so far as money can, in the position they would have occupied without the tort.
Damages may include:
Past financial losses capable of calculation at trial.
Losses requiring judicial assessment, including:
The terminology is procedural and does not determine whether the loss is recoverable.
Future loss may be assessed using:
In serious cases, the court may order:
A claimant may recover reasonable value for necessary care supplied gratuitously by family or friends.
The claimant generally holds the relevant sum for the carer.
The award may be reduced from full commercial rates to reflect that care was provided without profit or tax overheads.
A claimant must take reasonable steps to reduce loss.
The claimant need not:
Failure to mitigate reduces recovery for avoidable loss but does not normally extinguish the underlying claim.
The claimant cannot recover the same loss twice.
Whether benefits are deducted depends on their source and legal character, including:
Statutory benefit-recovery rules may require repayment from compensation.
The usual limitation period is three years from:
For children, time generally does not run during minority.
For a person lacking capacity, special rules apply.
The court may disapply the limitation period under section 33 Limitation Act 1980 where equitable.
This overlaps with Dispute Resolution.
Candidates should distinguish:
The principal statutes are:
The deceased’s existing cause of action generally survives for the estate.
The estate may recover qualifying losses arising before death, such as:
Certain heads of loss and causes of action are excluded or modified by statute.
Qualifying dependants may claim for financial benefits they reasonably expected from the deceased.
Potential losses include:
The claimant must fall within the statutory class of dependants.
The Fatal Accidents Act provides a fixed statutory bereavement award to a defined and restricted class.
Candidates should identify:
It is not a general award available to every grieving relative.
Pure economic loss is financial loss not consequent upon personal injury or damage to the claimant’s property.
The general rule is that pure economic loss caused by a negligent act is not recoverable.
Examples include:
Exceptions principally involve negligent misstatement and assumption of responsibility.
A claimant ordinarily cannot recover in negligence merely for:
Such loss is usually pure economic loss.
However, damage caused by the defect to other property or persons may be recoverable.
Key authorities include:
Economic loss consequential upon actionable physical damage may be recoverable.
Example:
However, a person suffering financial loss because another person’s property was damaged may face the pure-economic-loss rule.
Key authority:
Pure economic loss may be recoverable where there is a special relationship involving assumption of responsibility.
Apply:
Key authority:
Relevant factors include:
A duty may arise where a professional knows:
A statement made for one purpose does not automatically create liability when used for another.
Key authority:
A clear disclaimer may prevent an assumption of responsibility.
Its effectiveness depends on:
In Hedley Byrne, the disclaimer prevented liability.
The claimant must establish a recognised psychiatric illness.
Insufficient alone:
Candidates must distinguish:
A primary victim is directly involved in the incident and exposed to physical danger, or reasonably believes themselves to be.
If personal injury was foreseeable, the defendant may be liable for psychiatric injury even if psychiatric harm itself was not specifically foreseeable.
Key authority:
A secondary victim witnesses injury or danger to another without being personally endangered.
The claimant generally must establish:
Key authority:
Close ties of love and affection are generally presumed for limited relationships, particularly:
Others may need evidence of the closeness of the relationship, including:
Relationship label alone may be insufficient.
A claimant may satisfy proximity by witnessing:
The court examines continuity between the event and what the claimant perceived.
Key authority:
A later visit after the scene has materially changed may be insufficient.
Secondary-victim liability traditionally requires a sudden assault on the senses rather than psychiatric illness caused by gradual accumulation of distress.
Recent clinical-negligence authority has significantly restricted claims based on witnessing a relative’s later medical crisis caused by an earlier negligent omission.
Candidates should apply the law at the official examination cut-off.
A rescuer is not automatically treated as a primary victim.
They generally must:
Otherwise, they may need to satisfy secondary-victim requirements.
Key authority:
Employers owe personal duties to provide:
These duties are personal and traditionally described as non-delegable in the relevant sense.
Key authority:
An employer may be liable for:
A single unforeseen act by an otherwise competent employee does not automatically establish breach.
Employers should provide and maintain reasonably safe:
Under the Employers’ Liability (Defective Equipment) Act 1969, an employer may be liable where an employee is injured by defective equipment due to a third party’s fault.
A safe system includes:
It is insufficient merely to devise a safe system. The employer should take reasonable steps to implement and enforce it.
The employer should account for:
A warning may be inadequate where the employer should provide physical safeguards or supervision.
An employer may owe a duty concerning psychiatric injury from occupational stress where harm is reasonably foreseeable.
Relevant factors include:
The employer is generally entitled to assume employees can withstand ordinary pressures unless aware of particular vulnerability.
Key authority:
Vicarious liability makes one person liable for another’s tort.
The modern analysis asks:
The employer may be vicariously liable without personal fault.
Relevant factors include:
The contractual label is relevant but not conclusive.
Vicarious liability may extend beyond formal employment where the relationship places the tortfeasor’s activities within the defendant’s enterprise and creates the relevant risk.
However, genuine independent contractors are not ordinarily covered.
Key authorities include:
The tort must be so closely connected with authorised duties that it is fair and just to hold the employer liable.
Relevant questions include:
Key authorities include:
An employer may be liable even where the employee acted:
if the conduct remains closely connected to assigned functions.
A personal vendetta or “frolic of their own” may fall outside employment.
An employer held vicariously liable may theoretically seek an indemnity from the employee.
In practice, such claims are unusual and may be constrained by:
Vicarious liability does not eliminate the employee’s own primary liability.
Volenti is a complete defence where the claimant:
Knowledge alone is insufficient.
The claimant must consent to absolve the defendant from liability.
The defence is restricted in contexts including:
An employee continuing dangerous work does not necessarily consent freely.
A rescuer responding reasonably to danger is not ordinarily treated as accepting the defendant’s negligence.
Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced where:
Reduction must be just and equitable considering:
It is a partial, not complete, defence.
A child is judged according to the standard reasonably expected of a child of similar:
Very young children may not be contributorily negligent.
Key authority:
Failure to use available protection may justify reduction where it worsened injury.
For seat belts, traditional guideline reductions distinguish whether use would have:
Key authority:
A claim may be barred or restricted where connected with claimant’s unlawful conduct.
The modern approach considers:
Relevant factors include:
Key authority:
The 1957 Act applies to lawful visitors.
An occupier owes the common duty of care to take reasonable care to see that the visitor is reasonably safe in using the premises for the permitted purpose.
The duty concerns:
An occupier is a person with sufficient control over premises that they should realise a failure to use care may harm visitors.
There may be:
Key authority:
Premises include:
The issue is control rather than conventional ownership.
Visitors may enter through:
A person exceeding:
may cease to be a visitor.
Occupiers must be prepared for children to be less careful than adults.
Relevant factors include:
Key authorities include:
Parents may reasonably be expected to supervise very young children in some settings.
An occupier may expect a person exercising a calling to guard against risks ordinarily incidental to that work.
Key authority:
This does not excuse hidden dangers outside the visitor’s expected expertise.
A warning discharges the duty only where it is enough to make the visitor reasonably safe.
Consider:
A sign stating “Danger” may be insufficient without explaining an unusual hidden risk.
An occupier may avoid liability for a contractor’s faulty work where it was reasonable to:
The level of checking depends on:
Key authority:
An occupier may seek to restrict or exclude liability through:
Effectiveness depends on:
Business liability for death or personal injury caused by negligence cannot generally be excluded.
The 1984 Act applies principally to persons other than visitors, including trespassers.
A duty arises where the occupier:
The duty is to take reasonable care to see that the non-visitor does not suffer injury because of the danger.
Important distinctions from the 1957 Act include:
The occupier may discharge the 1984 duty by taking reasonable steps to:
The adequacy of warning depends on the circumstances.
Physical barriers may be required where a warning alone is ineffective.
An occupier is not ordinarily required to protect an adult against an obvious risk voluntarily encountered.
Key authorities include:
The law balances:
A manufacturer may owe a duty to the ultimate consumer where:
Key authority:
Claimant must prove:
Potential defendants include:
Liability depends on:
Part I of the Consumer Protection Act 1987 imposes strict liability for damage caused by a defective product.
The claimant need not prove negligence but must prove:
A product is defective where its safety is not such as persons generally are entitled to expect.
Relevant circumstances include:
A product is not defective merely because a safer product is later developed.
Potentially liable persons include:
Liability may be joint and several.
The Act principally covers:
Restrictions apply to:
Contract or negligence may provide alternative claims.
Statutory defences include, broadly:
The statutory scheme restricts exclusion of liability.
The defendant may avoid liability where the state of scientific and technical knowledge at the relevant time was not such that a producer of products of that description could be expected to discover the defect.
The defence is assessed objectively and may involve accessible scientific knowledge internationally.
Private nuisance protects a claimant’s interest in land against unreasonable interference.
Typical interference includes:
The claimant ordinarily needs a proprietary or possessory interest in the affected land.
A claimant generally needs:
A family member or lodger without such an interest ordinarily cannot sue merely because personally affected.
Key authority:
The court considers:
Physical damage is treated more strictly than personal discomfort.
What is unreasonable depends partly on the character of the area.
Noise acceptable in an industrial district may be unreasonable in a quiet residential area.
Key authority:
Locality is less significant where the nuisance causes physical damage to property.
A claimant cannot ordinarily complain where interference harms only an unusually sensitive use and would not affect ordinary use.
However, if ordinary use would also be harmed, the claimant may recover the full foreseeable consequences.
Key authority:
Malice can make conduct unreasonable where the defendant acts primarily to injure or annoy the claimant.
Key authorities:
A lawful activity may become actionable because of its malicious manner or purpose.
Social utility is relevant but does not automatically authorise nuisance.
Planning permission may alter the character of locality in appropriate cases, but does not itself grant a licence to commit nuisance.
Key authority:
Potential defendants include:
A person who did not create a naturally occurring hazard may nevertheless have to take reasonable steps after becoming aware of it.
Key authority:
An occupier may be liable for nuisance caused by another person where they:
Liability is not automatic merely because the nuisance emanated from their land.
Foreseeability of the relevant type of harm is required.
Key authority:
The defendant need not foresee the exact extent of damage.
Potential defences include:
Not valid defences by themselves:
Nuisance focuses on unreasonable interference, not simply careless conduct.
A defendant may acquire a right to commit what would otherwise be a nuisance after 20 years of actionable nuisance as of right.
Time generally runs from when the activity became actionable against the claimant’s land, not merely from when the activity began.
Remedies include:
The court considers:
An injunction is not automatic.
A claimant may take reasonable self-help steps to remove the nuisance.
Limitations include:
Because self-help is risky, legal advice or court relief is usually safer.
Public nuisance involves an act or omission materially affecting the reasonable comfort and convenience of a class of the public.
It may concern:
It can give rise to criminal and civil consequences.
A private individual generally must prove special damage beyond that suffered by the public generally.
The damage must be:
A public authority may have separate powers to restrain the nuisance.
The rule imposes strict liability where a defendant:
The rule is treated as a specialised form of nuisance.
The defendant must bring or keep the dangerous thing on the land.
The rule does not ordinarily apply to:
Examples may include large quantities of:
depending on context.
Modern law asks whether use is extraordinary and unusual in the place and circumstances.
Ordinary domestic use is generally insufficient.
Key authority:
The test is demanding and keeps Rylands liability narrow.
There must be movement from land controlled by defendant to land outside defendant’s occupation or control.
Key authority:
Injury occurring entirely within defendant’s premises does not ordinarily satisfy escape.
The type of damage caused by escape must be reasonably foreseeable.
Key authority:
Strict liability does not mean liability for wholly unforeseeable types of damage.
Potential defences include:
The precise defence depends on whether the event was truly beyond defendant’s control and reasonable foresight.
Prioritise:
For every scenario, ask:
The controlling source is the official SRA FLK1 specification. The attached sample paper is FLK2, so it demonstrates the SQE single-best-answer style but does not directly define or sample Tort Law.
5 subtopics · 104 questions