1. Introduction
This chapter focuses on the history and development of tort law. Before exploring the individual torts examined in later chapters, it is essential to understand what tort is, what it is for, and how the modern tort of negligence came to be recognised. These foundations underpin every topic that follows.
Tort is one of the central pillars of private law. Where one person's conduct infringes a legally protected interest of another, tort law steps in to provide a remedy — most commonly an award of damages designed to compensate the victim for the harm suffered.
2. Assessment Objectives
Candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the areas set out below.
Negligence.
Remedies and defences.
Occupiers' liability.
Product liability.
Nuisance and the rule in Rylands v Fletcher.
Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct. Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out above.
3. What is Tort?
Tort law is a branch of law that provides a legal remedy for anyone who has suffered a breach of an interest protected by law.
1.3.1 What are the Main Purposes of Tort Law?
The main purpose of tort law is to compensate the victim for harm and to provide relief to them, putting them back into the position they would have been in if the tort had not occurred.
1.3.2 Which Tort is Most Common in Practice?
Among the torts you will study, you will read and hear most about the tort of negligence, which imposes an obligation not to breach the duty of care.
Establishing a duty of care is the first element of any potential claim in the tort of negligence. In a simple formulation, to establish a claim in the tort of negligence, one needs to show that a duty of care exists, that it has been breached, and that the defendant's breach has caused damage to the claimant. One easy formulation is shown below.
| Tort of Negligence — Elements |
|---|
| Duty of Care + Breach of Duty of Care + Causation + Damage = Tort of Negligence |
4. The Tort of Negligence: Development of the Modern Tort of Negligence
In order to better understand the modern tort of negligence, it is necessary to know the development of the case law and how the courts have interpreted prior case law.
The tort of negligence is a relatively new concept in the common law — although the concept is still more than 90 years old. The legal basis for the tort of negligence can be found in Donoghue v Stevenson [1932].
Up until 1932, the general tort of negligence was not recognised by the law, except in situations where it was accepted that there was an established duty of care. For instance, doctors were expected to behave at a certain level that could be expected of their profession. Apart from some specific cases, most people injured by someone's negligent behaviour could not seek a legal remedy for the damage caused unless the parties had a contractual relationship — which was, in practice, very unlikely.
5. Key Notes (Chapter Summary)
The following summary table consolidates the key items examined in this chapter. Treat it as a revision checklist — you should be able to state each row from memory.
| Key Items | Concepts | Cases / References |
|---|---|---|
| Assessment Objectives | Candidates must apply core legal principles in areas such as negligence, remedies and defences, occupiers' liability, product liability, and nuisance and the rule in Rylands v Fletcher, and adhere to ethical standards. | SQE1 assessment specification |
| What is Tort? | Tort law provides legal remedies for breaches of legally protected interests. It is an umbrella term covering various types of harm or wrongful conduct. | — |
| Main Purposes of Tort Law | The primary aim is to compensate the victim and restore them to the position they would have been in had the tort not occurred. | — |
| Most Common Tort: Negligence | Negligence imposes a duty of care. To establish a claim, one must prove the existence of a duty of care, its breach, causation, and resultant damage. | — |
| Elements of Negligence | Duty of Care + Breach of Duty of Care + Causation + Damage. | — |
| Development of Negligence | The modern concept of negligence is relatively new and was established through case law. Before 1932, general negligence was not recognised unless there was an established duty of care, often in professional relationships. | Donoghue v Stevenson [1932] |
| Scottish Term for Tort | In Scotland, the term 'delict' is used to refer to what is known as 'tort' in other jurisdictions. | — |
6. Task
Use the following task to consolidate your understanding of the chapter before attempting the multiple-choice questions.
Task — Explain the key elements required to establish a claim in the tort of negligence. Use the formula provided in the content to structure your answer, and refer to the landmark case that laid the foundation for the modern tort of negligence.
7. MCQ Practice — Five SQE-Style Questions
Each of the following questions mirrors the style and difficulty of the SQE1 FLK1 single best answer questions. Attempt each question closed-book, write down your answer, then turn to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.
A. Law.
B. Court.
C. Rights.
D. Sincerity.
E. Legislation.
Answer & explanation
C is correct — torts are fundamentally based on the concept of 'rights'. The primary aim of tort law is to provide a legal remedy for the infringement of a person's rights or interests that are legally protected.
A is incorrect — 'law' is too general; it does not capture the protected-interest basis of tort.
B is incorrect — a court is the forum that enforces rights, not the conceptual basis of tort.
D is incorrect — sincerity is irrelevant to the foundation of tort.
E is incorrect — much of tort law is case law, not legislation; legislation is not its conceptual foundation. (See Section 1.3.)
A. Duty of Care.
B. Breach of Duty.
C. Causation.
D. Damage.
E. Intent.
Answer & explanation
E is correct — in the tort of negligence, intent is NOT a required element. The focus is on whether the defendant breached a duty of care that caused damage to the claimant.
A is incorrect — a duty of care is the first element of the claim.
B is incorrect — breach of that duty must be shown.
C is incorrect — causation (that the breach caused the harm) is required.
D is incorrect — damage must be proved. (See Section 1.3.2 — the negligence formula.)
A. Foreseeability of damage.
B. Proximity or 'neighbourhood'.
C. Fairness (policy considerations).
D. Contractual relationship.
E. Manufacturer's awareness of the product's danger.
Answer & explanation
B is correct — in the landmark case of Donoghue v Stevenson, the House of Lords established that a manufacturer owes a duty of care to the ultimate consumer of its product where the product reaches the consumer in the form in which it left the manufacturer, with no reasonable possibility of intermediate examination. This is often referred to as the 'neighbour principle', which focuses on the proximity or 'neighbourhood' between the party owing the duty and the party to whom it is owed.
A is incorrect — foreseeability is relevant to duty, but the facts (a manufacturer and the ultimate consumer) most directly engage the proximity/neighbour principle established on materially identical facts in Donoghue v Stevenson.
C is incorrect — policy/fairness is a further consideration, not the principle most directly in point on these facts.
D is incorrect — Emily bought the bottle from a shop, not from John, so there is no contractual relationship; the significance of Donoghue v Stevenson is precisely that no contract is needed.
E is incorrect — the manufacturer's awareness of danger is not the governing principle for establishing the duty here. (See Section 1.4.)
A. To punish the wrongdoer for behaving badly towards the victim.
B. To compensate the victim and restore them to the position they would have been in had the tort not occurred.
C. To deter the general public from committing criminal offences.
D. To enforce the terms of a contract agreed between the parties.
E. To provide a remedy only where the parties already have a contractual relationship.
Answer & explanation
B is correct — the main purpose of tort law is to compensate the victim for harm and to put them back into the position they would have been in if the tort had not occurred.
A is incorrect — tort is primarily compensatory, not punitive; punishment is the function of the criminal law.
C is incorrect — deterrence of crime is a function of the criminal law, not tort.
D is incorrect — enforcing contractual terms is the function of the law of contract.
E is incorrect — since Donoghue v Stevenson, a tort remedy does not depend on a contractual relationship between the parties. (See Section 1.3.1.)
A. A general tort of negligence had long been recognised, allowing anyone harmed by careless conduct to claim.
B. There was no general tort of negligence, except in situations where an established duty of care (such as a professional duty) was already accepted.
C. Negligence could only be claimed where the defendant had intended to cause harm to the claimant.
D. Negligence claims were governed entirely by Acts of Parliament rather than by the courts.
E. The tort of negligence was identical to its modern form and required proof of duty, breach, causation and damage.
Answer & explanation
B is correct — up until 1932, the general tort of negligence was not recognised, except in situations where there was an established duty of care (for example, the duty owed by doctors and other professionals). Otherwise, most people injured by negligent conduct could not obtain a remedy unless they had a contractual relationship with the defendant.
A is incorrect — a general tort of negligence was precisely what did not exist before 1932.
C is incorrect — negligence concerns careless, not intentional, conduct; intent is not an element of negligence.
D is incorrect — negligence was developed through case law, not by statute.
E is incorrect — the modern form of the tort was established by Donoghue v Stevenson [1932], not before it. (See Section 1.4.)