Picture this. You have drilled the negligence duty-of-care tests until you can recite Caparo v Dickman in your sleep. Then a FLK1 single best answer question appears about a visitor who slips on a wet floor in a shop, and another about an employer being sued for something an employee did at a Christmas party. Suddenly the clean three-part duty test does not help you, and you realise the SQE1 Tort syllabus is much wider than negligence alone.
This is where a lot of candidates lose easy marks. Negligence is the headline act, but the SRA specification also tests occupiers' liability, vicarious liability, private nuisance, product liability and the general defences. These topics carry their own statutes and their own logic. Let us walk through the areas that sit beyond negligence and, more importantly, how to answer questions on them under exam pressure.
Occupiers' Liability: Two Acts, Two Standards
Occupiers' liability is one of the most heavily tested Tort areas in SQE1 FLK1, and the trick is knowing which of two statutes applies. The whole question turns on the status of the person who is injured.
If the claimant is a lawful visitor — invited or permitted to be there — you are in the Occupiers' Liability Act 1957. The occupier owes the "common duty of care" to keep visitors reasonably safe for the purpose for which they were permitted to be present. Watch for the special rules: children are owed a higher standard because they are less careful (think of the allurement idea), while a skilled visitor such as a tradesperson is expected to guard against risks ordinarily incidental to their trade.
If the claimant is a trespasser, you switch to the Occupiers' Liability Act 1984. The duty is narrower and only arises where three conditions are met: the occupier knows of the danger, knows or has reasonable grounds to believe a trespasser may come into the vicinity, and the risk is one against which it is reasonable to offer some protection. The duty is to take reasonable care to prevent injury — and crucially the 1984 Act covers personal injury only, not property damage.
Exam tactic: read the facts to fix the claimant's status first. Visitor or trespasser? That single decision tells you which Act, which standard and which defences are even available. Get it wrong and every later step collapses.
Remember warnings and exclusions too. Under the 1957 Act a warning may discharge the duty if it enables the visitor to be reasonably safe. And an occupier may be able to exclude or restrict liability, subject to the controls in the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015 where a business occupier is involved.
Vicarious Liability: When the Employer Pays
Vicarious liability makes one person liable for the tort of another. In practice this almost always means an employer being held responsible for a tort committed by an employee. The SQE loves this topic because it forces a two-stage analysis, and both stages must be satisfied.
Stage one asks whether there is a relationship capable of giving rise to vicarious liability — typically employment, or a relationship "akin to employment". Stage two asks whether the tort was committed in the course of employment. Modern cases apply a "close connection" test: was the wrongful conduct so closely connected with the acts the employee was authorised to do that it can fairly be regarded as done while acting in the ordinary course of employment?
This is where the Christmas party scenario bites. An employee who assaults a colleague while on a personal "frolic of his own" is unlikely to bind the employer, whereas an act done while carrying out, however improperly, the job they were employed to do may well do so. Distinguish carefully between an employee and an independent contractor, because an employer is generally not vicariously liable for the torts of an independent contractor.
One practical takeaway: in an MCQ, identify the tortfeasor and ask "who actually committed the tort, and who is the question trying to make pay?" Vicarious liability does not absolve the employee — it simply adds the employer as an additional, usually solvent, defendant.
Private Nuisance and Rylands v Fletcher
Land-based torts trip people up because they overlap with negligence in the candidate's mind but operate quite differently. Private nuisance protects a claimant's use and enjoyment of their land against an unlawful, indirect interference — noise, smell, vibrations, encroaching tree roots. The claimant generally needs an interest in the land affected.
The interference must be unreasonable, and the court weighs factors such as duration, the character of the locality, any malice, and abnormal sensitivity of the claimant. Note that the locality factor does not apply where there is physical damage to property — only to interference with comfort and enjoyment. A useful point to memorise: planning permission can change the character of an area, but it does not by itself authorise a nuisance.
Sitting alongside nuisance is the rule in Rylands v Fletcher. This imposes liability where a person brings onto their land something likely to do mischief if it escapes, makes a non-natural use of the land, and the thing escapes causing foreseeable damage. It is a form of strict liability, but foreseeability of the type of harm is still required. Keep nuisance and Rylands separate in your head; an exam question may deliberately mix the elements to see whether you can pull them apart.
Quick check: nuisance is about continuing or recurring interference with land. Rylands is about a one-off escape of something dangerous. If the facts describe a single dramatic escape — water, chemicals, fire — reach for Rylands first.
Product Liability and Employers' Duties
Where a defective product causes harm, a claimant has options. There is the common law negligence route descending from Donoghue v Stevenson, and there is the statutory route under the Consumer Protection Act 1987, which imposes strict liability on producers for damage caused by a defective product. Under the Act the claimant does not have to prove fault — only that the product was defective and caused the damage. Know the limits: the Act covers death, personal injury and damage to private property above a threshold, but not pure economic loss or damage to the product itself.
Employers' liability is a related theme. An employer owes a personal, non-delegable duty to provide competent staff, a safe place of work, proper equipment and a safe system of work. This duty sits separately from vicarious liability, and a question may engage both at once — so do not stop your analysis at the first head of liability you spot.
Defences That Change the Answer
Many Tort questions are really defence questions in disguise. Once liability is established, the marks often hang on whether a defence reduces or defeats the claim.
Contributory negligence is a partial defence under the Law Reform (Contributory Negligence) Act 1945. Where the claimant's own carelessness contributed to their loss, damages are reduced by a just and equitable proportion. It does not extinguish the claim — a common distractor in the answer options.
Consent (volenti non fit injuria) is a complete defence, but it is hard to establish: the claimant must have known of the precise risk and freely accepted it. Illegality (ex turpi causa) can bar a claim closely connected to the claimant's own criminal act. When you see a tempting "the claim fails entirely" option, ask whether the facts really support a complete defence or only a reduction.
Here is how I would attack a Tort MCQ. Identify the tort and its elements. Run each element against the facts. Decide whether liability is made out. Then — and only then — test the available defences. If you skip straight to defences, you will fall for answers that assume liability the facts never actually establish.
Turning Knowledge Into FLK1 Marks
Tort rewards structured thinking more than rote memory. Build a one-page map for each tort listing its elements, the leading authority and the relevant statute, then practise applying that map to short fact patterns. Because SQE1 uses single best answer questions, two options will often both be "correct law" — your job is to pick the one that best fits these facts. That skill only comes from doing questions, reviewing why the right answer was right, and noticing the traps that recur.
Why does this matter for your wider solicitor qualification? Because the same disciplined, issue-by-issue reasoning carries straight into SQE2, where you will analyse client problems and write advice under time pressure. Master the structure now and you are building habits for both stages.
If you would like that structure built for you, CELE SQE (celebar.com) covers all 13 FLK subjects, with a Short-term Course at £1,750, a Mid-term Course at £2,750 and a Long-term Course at £3,720; a single FLK is half price, and there is £150 off within three months of your exam. Our SQE1 Question Bank subscription is £575 per month for candidates who simply want more applied practice. Reach us on WeChat SQE100 or at [email protected] whenever you want a steer on your Tort revision.