§SQEpractice

Tort for SQE1

Negligence is the spine of the subject, and causation is where the marks are won: a carelessly behaving defendant is not the same as a defendant who caused this loss.

Updated 6 min read

What the subject covers

Tort is examined in FLK1 Session 2 with Contract and the Legal System. Negligence dominates, with a set of specific liabilities attached to particular roles and relationships, the land torts, and the defences that apply across them.

Negligence: the four questions

  1. Duty: the established categories, and the approach where the situation is novel.
  2. Breach: the standard of the reasonable person, adjusted for professionals, learners and children, and the factors going to what reasonable care required — the likelihood and seriousness of harm, the cost of precautions, and the utility of the conduct. Res ipsa loquitur where the facts speak for themselves.
  3. Causation: the but-for test, multiple and successive causes, material contribution, loss of a chance, and intervening acts.
  4. Remoteness: harm of a reasonably foreseeable kind, the thin skull rule, and the manner of the harm.

Almost every negligence question in SQE1 is decided at step three or four. The defendant is usually obviously careless; the issue is whether the carelessness produced this loss, to this claimant.

Psychiatric harm and economic loss

Two areas where the duty question is the whole question. For psychiatric injury, the distinction between primary and secondary victims and the control mechanisms applied to secondary victims. For economic loss, the line between pure and consequential loss, and the limited route through negligent misstatement, assumption of responsibility and reasonable reliance.

Liability attached to a role

  • Employers’ liability: the personal, non-delegable duties owed to employees.
  • Vicarious liability: the relationship, and the close connection between the wrong and the work.
  • Occupiers’ liability: the duty to visitors, and the narrower duty to trespassers, with the treatment of children, contractors and warnings.
  • Product liability: the statutory regime alongside the common law claim.

Nuisance and related torts

Private nuisance — who can sue, unreasonable interference, and the relevance of locality, duration and malice — public nuisance in outline, and the rule in Rylands v Fletcher with its requirements of an accumulation, an escape and a non-natural use.

Defences and remedies

Contributory negligence and its effect on the award, consent, illegality, and the specific defences attaching to the land torts. Remedies: compensatory damages for personal injury and property damage, the duty to mitigate, and injunctions where the interference continues.

Where the marks go

  • Causation. The most common single source of lost marks in the subject.
  • Which liability.A workplace injury can be employers’ liability, vicarious liability, occupiers’ liability or plain negligence, and the options will offer all four.
  • Secondary victims. The control mechanisms are cumulative, and a question that satisfies three of them is testing the fourth.
  • Pure economic loss. Candidates recover it because the defendant behaved badly. The law usually does not.

Revise it beside Contract — they share a session and a way of thinking about loss. The rest of the paper is in the FLK1 subject guide.

Common questions

What is the 'but for' test?
The basic test of factual causation: would the claimant have suffered the loss but for the defendant's breach? Where it cannot resolve the question — multiple sufficient causes, or scientific uncertainty — the law supplies modified approaches.
When is an employer vicariously liable?
Where the relationship between the wrongdoer and the defendant is one of employment or akin to it, and the wrongful act is sufficiently closely connected with what the wrongdoer was employed to do. Both limbs are tested, and questions usually put pressure on the second.
Is pure economic loss recoverable in negligence?
Generally not, unless it arises from a negligent misstatement relied on in circumstances where the defendant assumed responsibility for its accuracy. Distinguishing pure economic loss from consequential loss is the first move in any such question.

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