A delivery driver reverses into a warehouse yard at 6am. The yard gate is unlocked, the security lighting has been broken for a fortnight, and he falls into an unfenced inspection pit. He is not a customer, he was told never to enter before 7am, and the pit was dug by an outside contractor. Who is liable, and under which regime?
I have watched hundreds of candidates read that kind of stem and immediately reach for duty, breach, causation, damage. It is not wrong. It is just often the wrong door. In the SQE1 FLK1 tort paper, a large slice of the marks sits outside ordinary common law negligence — in the statutory occupiers' liability regimes, in vicarious liability, in nuisance, in Rylands v Fletcher, and in the Consumer Protection Act 1987. Miss the signal and you will happily analyse a duty of care that the examiner never asked about.
Why SQE1 tort questions punish negligence-only thinking
Single Best Answer questions reward the candidate who identifies the correct cause of action in the first fifteen seconds. Every FLK1 tort stem contains a routing clue. Someone injured on premises by the state of the premises? That is occupiers' liability, not general negligence. Someone injured by an activity carried on there? Back to common law negligence. Smell, noise, dust, roots, vibration affecting land? Private nuisance. An employee assaulting a customer? Vicarious liability, and the whole question becomes "close connection".
Get into the habit of asking three routing questions before you write anything: what is the damage (personal injury, property, pure economic loss, psychiatric harm, loss of amenity)? Who is the defendant (occupier, employer, producer, neighbour)? And what is the source of the harm (premises, escape, product, person)? Those three answers usually name the tort for you.
Damage type plus defendant identity plus source of harm equals cause of action. Run that triage on every practice question until it becomes automatic.
Occupiers' liability for FLK1: two Acts, two very different duties
The Occupiers' Liability Act 1957 covers lawful visitors. The Occupiers' Liability Act 1984 covers everyone else — trespassers, and those exceeding the terms of their permission. Our delivery driver arriving an hour early has almost certainly stepped outside his permission, so he is likely a 1984 Act claimant. That single classification changes the entire answer.
Under the 1957 Act, the occupier owes the common duty of care in section 2(2): 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. Learn the modifiers: children must be expected to be less careful (s.2(3)(a)), and a professional visitor is expected to guard against risks ordinarily incident to their calling (s.2(3)(b)) — the classic chimney sweep and electrician fact patterns. Warnings only discharge the duty if, in all the circumstances, they were enough to enable the visitor to be reasonably safe (s.2(4)(a)). A sign saying "Danger" on an unlit yard rarely does that job.
The independent contractor point is examined constantly. Under s.2(4)(b) the occupier is not liable for faulty work by an independent contractor if it was reasonable to entrust the work to a contractor, reasonable steps were taken to check competence, and, where possible, the work was inspected. So the contractor who dug the pit may take the liability — but only if the occupier can tick all three boxes.
The 1984 Act is stingier. A duty arises only where the three conditions in s.1(3) are met: the occupier is aware of the danger (or has reasonable grounds to believe it exists); knows or has reasonable grounds to believe the other is in the vicinity of the danger; and the risk is one against which, in all the circumstances, he may reasonably be expected to offer some protection. The duty itself (s.1(4)) is to take such care as is reasonable to see the entrant is not injured by reason of the danger. Note the limits: a warning may suffice under s.1(5), and there is no recovery for property damage under the 1984 Act. That last point is a favourite distractor.
Vicarious liability and employers' duties in SQE1 FLK1
Vicarious liability is a two-stage test, and answer options are usually built to see whether you keep the stages apart. Stage one: is the relationship one of employment or akin to employment? Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 opened the door beyond strict contracts of service, but Various Claimants v Barclays Bank [2020] UKSC 13 pulled it back — a genuinely independent contractor carrying on their own business is outside the doctrine.
Stage two: is there a sufficiently close connection between the wrongful act and what the tortfeasor was authorised to do? Contrast Mohamud v WM Morrison Supermarkets [2016] UKSC 11, where a petrol station attendant's violent outburst was connected to his customer-facing role, with Various Claimants v Wm Morrison Supermarkets [2020] UKSC 12, where an employee's deliberate data leak was a personal vendetta and the employer escaped. Ask yourself: was the employee, however badly, going about the employer's business, or pursuing his own agenda?
Do not forget the employer's own non-delegable primary duty — competent staff, safe plant and equipment, a safe place of work, and a safe system of work, from Wilsons & Clyde Coal Co Ltd v English [1938] AC 57. Where an employee is injured by a poor system rather than by a colleague's one-off blunder, the primary duty answer is usually the better one. And remember that vicarious liability is joint: the employee remains personally liable too.
Nuisance and Rylands v Fletcher: the land-based torts
Private nuisance protects the use and enjoyment of land, so the claimant needs a proprietary interest — Hunter v Canary Wharf Ltd [1997] AC 655. A lodger, a child of the household or a visiting friend cannot sue. The question is whether the interference is unreasonable, judged by locality, duration, intensity, any abnormal sensitivity of the claimant, and malice. Coventry v Lawrence [2014] UKSC 13 confirmed that the character of a locality can itself be shaped by an existing planning permission, though permission is not a defence in itself, and that coming to the nuisance is generally no defence. Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 reminded everyone that the touchstone is whether the defendant's use of land is common and ordinary.
Rylands v Fletcher (1868) LR 3 HL 330 is narrow and examinable precisely because it is narrow. Transco plc v Stockport MBC [2003] UKHL 61 restated it: the defendant must have brought onto and accumulated on his land something likely to do mischief if it escapes, the use must be extraordinary and unusual, there must be an escape, and the damage must be of a foreseeable type. Personal injury is not recoverable. Act of a stranger, act of God, statutory authority and the claimant's consent all defend.
Remedies deserve five minutes of your revision time. An injunction is the primary remedy in nuisance, but the court has discretion to award damages in lieu; Coventry v Lawrence loosened the old Shelfer straitjacket. Abatement — self-help — exists but is hedged with notice requirements.
Product liability and defences: where the quiet marks are
Two routes exist for a defective product. Common law negligence under Donoghue v Stevenson [1932] AC 562 requires proof of fault. Part I of the Consumer Protection Act 1987 imposes strict liability on producers, own-branders and importers into the UK, with suppliers liable only if they fail to identify their supplier on request. A product is defective under s.3 if its safety is not such as persons generally are entitled to expect. The recoverable damage under s.5 is death, personal injury, and damage to private property above £275 — never damage to the defective product itself. When a stem carefully tells you the buyer's kitchen was ruined and the appliance destroyed, the exam is testing exactly that boundary.
Defences run across the whole syllabus and are worth a dedicated flashcard deck. Contributory negligence reduces damages under s.1 of the Law Reform (Contributory Negligence) Act 1945 — it is a partial defence and never a complete answer. Consent (volenti) is complete but demanding, requiring full knowledge of the nature and extent of the risk plus genuine voluntary agreement; note the statutory restriction on the defence in road traffic cases. Illegality now follows the policy-based approach in Patel v Mirza [2016] UKSC 42.
A revision drill that actually moves your SQE1 score
Build one A4 sheet per regime with four boxes: who can sue, who can be sued, what must be proved, what is recoverable. Fill them from memory each week. Then take twenty mixed tort questions and, before choosing an answer, write the cause of action in the margin. Score yourself on the routing separately from the final answer — you will quickly see whether you are losing marks on law or on classification.
Second drill: rewrite a stem you got wrong so that a different regime applies. Change the delivery driver from a trespasser to an invited contractor. Change the escaping substance to something ordinary. That single habit teaches you what the examiner is manipulating, which is the whole skill of Single Best Answer questions across FLK1 and FLK2.
Remember the shape of the exam: each SQE1 paper is 180 Single Best Answer questions in 5 hours 20 minutes. That is under two minutes per question, so classification has to be instinctive, not deliberative.
How CELE SQE can help
We have taught SQE candidates since the very first sitting in 2021, and tort is one of those subjects where structured drilling beats re-reading notes every time. Our SQE1 courses run as long-term (£3,720), mid-term (£2,750) or short-term (£1,750), with a single-FLK option at half price and £150 off for early birds or those booking within three months of the exam; the question bank is available separately at £575 per month, and textbooks are £950 for the full set or £570 for a single FLK. If you would like a second opinion on your revision plan, message us on WeChat SQE100 or email [email protected] — no obligation, and we are happy to talk through where your tort marks are leaking.