Introduction to Tort Law
Tort law is a core subject in UK legal education and a significant component of the SQE1 examination. Unlike contract law, which governs voluntary obligations, tort law imposes duties on individuals regardless of agreement. The word "tort" derives from the Latin tortum meaning "wrong." The primary aim of tort law is to compensate those who have suffered harm due to the wrongful conduct of others.
This guide covers the major torts you need to know for exams: negligence (the most commonly examined), occupiers' liability, nuisance, and the rule in Rylands v Fletcher.
💡 Key Takeaway
Negligence is by far the most examined area of tort law. Master the four-stage framework — duty, breach, causation, remoteness — and you'll have a reliable structure for almost any tort problem question.
1. Negligence
Negligence is the most important tort and the one most frequently examined. To succeed in a negligence claim, the claimant must prove three elements: (1) the defendant owed a duty of care, (2) the defendant breached that duty, and (3) the breach caused the claimant's loss, which was not too remote.
Duty of Care
The modern test for establishing a duty of care was set out in Caparo Industries v Dickman [1990], which requires three elements:
- Foreseeability — Was the harm reasonably foreseeable?
- Proximity — Was there a sufficiently close relationship between the parties?
- Fair, just and reasonable — Is it fair to impose a duty in the circumstances?
Key Case: Donoghue v Stevenson [1932] — The foundational case establishing the "neighbour principle." Lord Atkin held that manufacturers owe a duty of care to the ultimate consumer of their products. This case established the general principle that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Breach of Duty
Breach is assessed by the objective standard of the reasonable person. The court considers whether the defendant fell below the standard of care expected. Relevant factors include:
| Factor | Principle | Key Case |
|---|---|---|
| Likelihood of harm | Greater risk requires greater precautions | Bolton v Stone [1951] |
| Severity of harm | More serious potential harm raises the standard | Paris v Stepney BC [1951] |
| Cost of precautions | Balanced against the risk | Latimer v AEC [1953] |
| Social utility | Socially valuable activities may justify some risk | Watt v Hertfordshire CC [1954] |
| Common practice | Following common practice is evidence but not conclusive | Bolam v Friern Hospital [1957] |
Causation
The claimant must prove both factual causation and legal causation.
Factual causation is established using the "but for" test: but for the defendant's breach, would the claimant have suffered the harm? (Barnett v Chelsea & Kensington Hospital [1969]). Where there are multiple potential causes, the courts have developed exceptions including thematerial contribution test (Bonnington Castings v Wardlaw [1956]) and thematerial increase in risk test (McGhee v NCB [1973]; Fairchild v Glenhaven [2002]).
Legal causation considers whether a novus actus interveniens (new intervening act) breaks the chain of causation. Acts of third parties, the claimant's own acts, and natural events may all break the chain if they are sufficiently independent and unforeseeable.
Remoteness of Damage
The defendant is only liable for damage that is of a reasonably foreseeable type(The Wagon Mound (No 1) [1961]). The "thin skull rule" provides that the defendant must take the claimant as they find them — if the type of harm is foreseeable, the defendant is liable for the full extent even if unexpectedly severe (Smith v Leech Brain [1962]).
2. Occupiers' Liability
Occupiers' liability is governed by two statutes: the Occupiers' Liability Act 1957(duty to lawful visitors) and the Occupiers' Liability Act 1984 (duty to trespassers and other non-visitors).
Under the 1957 Act, an occupier owes a "common duty of care" to all lawful visitors — the duty to take such care as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there. The occupier must be prepared for children to be less careful than adults (Glasgow Corporation v Taylor [1922]).
📝 Exam Tip
When discussing causation, always address both factual causation ('but for' test) and legal causation (remoteness). Students frequently forget the second limb and lose easy marks.
Under the 1984 Act, the duty to non-visitors arises only where the occupier: (a) is aware of the danger or has reasonable grounds to believe it exists, (b) knows or has reasonable grounds to believe the non-visitor is in the vicinity, and (c) the risk is one against which the occupier may reasonably be expected to offer some protection.
3. Nuisance
Private nuisance is an unlawful interference with a person's use or enjoyment of land. The key factors in determining liability include: the locality (Sturges v Bridgman [1879]), duration and frequency, sensitivity of the claimant (Robinson v Kilvert [1889]), and malice (Hollywood Silver Fox Farm v Emmett [1936]).
Public nuisance is a crime at common law that affects a class of the public. A private individual can only sue in public nuisance if they have suffered special damage over and above that suffered by the public generally.
4. Rylands v Fletcher
The rule in Rylands v Fletcher [1868] imposes strict liability where the defendant brings onto their land something likely to do mischief if it escapes, which constitutes a non-natural useof land. The elements are: (1) bringing onto land, (2) something likely to do mischief, (3) escape, and (4) non-natural use. In Transco v Stockport MBC [2004], the House of Lords confirmed the rule's continued existence but emphasised its narrow scope.
⚠️ Common Mistake
Don't confuse occupiers' liability under the 1957 Act (lawful visitors) with the 1984 Act (trespassers). The duty owed is different in each case, and applying the wrong statute is a common exam error.
5. Defences
Common defences in tort include:
- Contributory negligence — Under the Law Reform (Contributory Negligence) Act 1945, damages are reduced by the claimant's share of responsibility (Sayers v Harlow UDC [1958])
- Volenti non fit injuria — Voluntary assumption of risk is a complete defence (ICI v Shatwell [1965])
- Illegality (ex turpi causa) — A claimant engaged in illegal activity may be barred from recovery
💡 Key Takeaway
For essay questions on tort reform, always consider the policy tensions: should tort law prioritise compensation for victims, or deterrence of harmful behaviour? The best answers engage with both perspectives.
Exam Tips for Tort Law
Tort law problem questions typically require a structured analysis of each element of the tort. Common exam mistakes include:
- Jumping straight to breach without establishing duty of care first — always apply Caparo
- Confusing factual and legal causation — address both separately
- Forgetting to discuss remoteness after establishing causation
- Applying the wrong Occupiers' Liability Act — check whether the claimant is a visitor or trespasser
- Not considering defences — always check for contributory negligence and volenti
- Failing to quantify or discuss the type of damages available