Tort law is one of the cornerstones of the FLK1 paper. Of all the tort topics tested, negligence is the most important — it features in the greatest number of scenarios, it underpins multiple other areas of the syllabus, and it is the tort most likely to appear in practice as a newly qualified solicitor. This guide covers the three-stage negligence framework and the subsidiary rules you must have at your fingertips for exam day.
The Three-Stage Negligence Test
To establish negligence, a claimant must prove three things: duty of care, breach of that duty, and damage caused by the breach. All three must be satisfied — a strong argument on two elements cannot compensate for a failure on the third.
Stage 1: Duty of Care
The general test for duty of care comes from Caparo Industries v Dickman [1990]: was the damage reasonably foreseeable? Was there sufficient proximity between claimant and defendant? And is it fair, just, and reasonable to impose a duty?
Certain duty relationships are well established and need not be re-established from scratch in an exam answer. Drivers owe a duty to other road users; doctors owe a duty to patients; employers owe a duty to employees. The Caparo three-stage test becomes important in novel situations — economic loss caused by negligent statements, for example, or liability for psychiatric injury to secondary victims.
- Pure economic loss: Generally not recoverable unless a special relationship exists giving rise to an assumption of responsibility (Hedley Byrne v Heller).
- Psychiatric injury: Primary victims (within zone of physical danger) can recover straightforwardly. Secondary victims must satisfy the Alcock control mechanisms: close ties of love and affection, proximity in time and space, and perception with own unaided senses.
Stage 2: Breach of Duty
Breach is assessed by reference to the standard of the reasonable person. The defendant must have fallen below the standard that the reasonable person in their position would have met. The standard is objective — a learner driver is held to the standard of a competent, qualified driver (Nettleship v Weston).
Where the defendant holds themselves out as having a special skill, the standard is that of a reasonably competent practitioner in that field (Bolam v Friern HMC, as refined by Bolitho).
The courts take into account several factors in assessing breach:
- The probability that harm would occur
- The seriousness of the potential harm
- The cost and practicability of precautions
- The social utility of the defendant’s activity
The res ipsa loquitur doctrine (“the thing speaks for itself”) allows breach to be inferred where the accident is of a type that would not ordinarily occur without negligence, the cause is unknown, and the defendant was in control of the situation. It shifts the evidential burden — it does not reverse the legal burden of proof.
Stage 3: Causation and Remoteness
The claimant must prove that the defendant’s breach caused their damage. The primary test is the “but for” test: but for the defendant’s breach, would the damage have occurred? If the answer is yes (the damage would have happened anyway), causation fails.
Where multiple causes are involved, the Fairchild exception may apply in mesothelioma-type cases involving scientific uncertainty — but this is rarely tested in SQE1 beyond awareness of its existence.
Even if causation is established, the damage must not be too remote. The defendant is liable for damage of a type that was reasonably foreseeable, even if the precise manner or extent was not (The Wagon Mound (No 1)). The thin skull rule provides that where the damage is of a foreseeable type, the defendant takes the claimant as they find them — so if a claimant suffers unusually severe harm due to a pre-existing vulnerability, that does not break the chain of causation.
Defences to Negligence
Two defences commonly arise in SQE1 tort scenarios:
- Contributory negligence: The claimant’s own fault contributed to their damage. Damages are reduced proportionately under the Law Reform (Contributory Negligence) Act 1945. This is not a complete defence — the claim succeeds but damages are reduced.
- Volenti non fit injuria: The claimant freely and voluntarily consented to the risk of harm. This is a complete defence. It requires full knowledge of the risk and a genuine voluntary acceptance — it is rarely established in employment contexts (Smith v Baker).
Occupiers’ Liability and Other Tort Topics
Beyond negligence, the FLK1 tort syllabus includes occupiers’ liability (Occupiers’ Liability Acts 1957 and 1984 — distinguish between lawful visitors and trespassers), vicarious liability (employer liability for employees’ torts in the course of employment), private nuisance, and the rule in Rylands v Fletcher. Each of these warrants its own focused revision, but negligence provides the conceptual foundation.
Practise This Topic on Sqewise
Tort law scenarios in FLK1 often blend multiple issues — a single question might require you to assess duty, breach, causation, and defences simultaneously. The only way to get comfortable with this is through applied practice. Start with Sqewise’s tort law practice questions, track your progress across all SQE1 topics, and use the study planner to ensure tort doesn’t get neglected in the final weeks.