Tort Law SQE1 Revision: Negligence, Occupiers and Economic Loss

Tort feels deceptively friendly at first. The vocabulary is everyday — accidents, slips, careless advice — and the leading cases are the ones you half-remember from undergraduate study. Then you sit a timed FLK1 set and the friendliness evaporates. The questions don't ask "what is negligence?" They drop you into a fact pattern where the duty is obvious, the breach is arguable, and the whole thing turns on whether the loss was the right kind of loss. That last point is where careful candidates quietly lose marks.

So let's rebuild tort the way the SQE actually tests it: as a sequence of gates a claimant must walk through, with a few notorious side-doors marked "occupiers" and "economic loss". Tort sits inside FLK1, alongside Contract, Business Law and Practice, Dispute Resolution and the rest of that paper's seven subjects, so the reasoning style overlaps heavily with what you'll meet elsewhere on the same day.

The negligence chain — and why each link is a separate question

Negligence is not one idea. It's four, stacked in order, and the examiner can attack any single link while conceding the other three. If you can name the link under fire, you've usually found the answer.

1. Duty of care — did the defendant owe the claimant a duty?
2. Breach — did they fall below the standard of the reasonable person?
3. Causation — did the breach cause the damage, in fact and in law?
4. Damage — is the harm of a kind the law recognises and is it too remote?

Duty, for the everyday physical-injury case, is rarely controversial. The modern courts have stepped back from treating Caparo v Dickman as a universal three-stage test to be recited mechanically; where an established category of duty exists, you simply apply it. Robinson v Chief Constable of West Yorkshire made that point firmly — start with precedent and analogy, and only reach for the incremental, policy-laden analysis when the situation is genuinely novel. For the SQE, this matters because the wrong answer often dangles a full Caparo recital in front of you for a bog-standard road-traffic scenario where duty was never in doubt.

Breach: the standard, then the evidence

Breach has two moving parts. First, what standard applies? The reasonable person — objective, stripped of the defendant's own nervousness or inexperience. A learner driver is judged against the competent driver, not the anxious novice. A professional is judged against the reasonably competent member of that profession (the Bolam idea, now read with the gloss that the body of opinion relied on must withstand logical scrutiny).

Second, did the defendant fall below it? Here the examiner wants you to weigh the familiar factors: the likelihood of harm, the seriousness of the potential injury, the cost and practicability of precautions, and any social utility in what the defendant was doing. A small risk that's cheap to eliminate usually means breach; a serious-but-remote risk taken while, say, rushing an injured person to hospital may not. Don't just assert breach — show the balancing.

Causation: factual then legal

Factual causation is the "but for" test. But for the defendant's carelessness, would the claimant have suffered the harm? The classic illustration is the casualty patient turned away by a doctor who would have died of arsenic poisoning anyway — careless, yes, but the carelessness changed nothing, so the claim fails on causation. Memorise the structure, not just the anecdote.

Legal causation asks whether anything broke the chain — a novus actus interveniens — a third party's act, the claimant's own unreasonable conduct, or an unforeseeable natural event. And remoteness, the fourth link's companion, asks whether the type of damage was reasonably foreseeable, even if its precise extent or manner was not. The eggshell-skull rule lives here: take your victim as you find them, so an unforeseeable extent of personal injury is still recoverable once some personal injury was foreseeable.

The single most profitable habit in tort revision is to read the final sentence of the fact pattern first and ask: which link is this question actually attacking? Nine times out of ten, the answer options cluster around one link, and the other three are noise.

Occupiers' liability: two Acts, two visitors, one common trap

Occupiers' liability is a statutory pocket of negligence, and it's a gift to examiners because the answer hinges on a single threshold classification: was the claimant a lawful visitor or a trespasser? Get that wrong and every subsequent step collapses.

Under the 1957 Act, the occupier owes the common duty of care to all lawful visitors. Watch the special rules: children may be owed more, because an occupier must expect them to be less careful, and the courts speak of allurements that draw a child into danger. Conversely, a person exercising a calling — a tradesperson — is expected to guard against the ordinary risks of their own trade, so the occupier who warns a chimney sweep about fumes is on stronger ground.

The 1984 Act is meaner, deliberately. A trespasser is only owed a duty if the occupier is aware of the danger (or has reasonable grounds to believe it exists), knows or has reasonable grounds to believe someone is or may come into the vicinity of the danger, and the risk is one against which, in all the circumstances, it is reasonable to offer some protection. Three conditions, all of which must be satisfied. And remember the headline limit: the 1984 Act covers personal injury only. If the question gives a trespasser whose expensive watch is damaged, the property element simply isn't recoverable under that Act — a favourite distractor.

A worked example

Take this fact pattern. A supermarket leaves a freshly mopped floor without a warning sign during opening hours. A customer slips and fractures a wrist. Separately, after closing, a teenager climbs the perimeter fence to retrieve a football, slips on the same wet floor through a propped-open fire door, and breaks an ankle. Same hazard, two very different analyses.

The customer is a lawful visitor: the 1957 Act applies, the common duty of care is engaged, an unmarked wet floor during trading hours is a textbook breach, and personal injury is recoverable. Straightforward.

The teenager is a trespasser after hours, so we're in 1984 Act territory. Did the supermarket know of the danger? Plausibly — they created it. Did they have reasonable grounds to believe someone might come into the vicinity? That's the contestable link: a locked, fenced site after closing weakens the claim, but a propped-open fire door and a known habit of children retrieving balls could revive it. The examiner is testing whether you can separate the two regimes and spot that the second claim lives or dies on the second statutory condition. Notice, too, that had the teenager's phone been smashed rather than their ankle broken, the property loss would fall outside the 1984 Act entirely.

Pure economic loss: the topic that punishes intuition

This is the part of tort where common sense actively misleads you, which is precisely why it's so heavily tested. The instinct is: harm is harm, money lost is money lost, recover it. The law says no — not without good reason.

Start with the distinction the whole topic rests on:

• Consequential economic loss — financial loss that flows from physical damage to the claimant's own person or property. Generally recoverable. If a negligent driver injures a self-employed plumber, the lost earnings during recovery come with the personal injury.
• Pure economic loss — financial loss that does not flow from any physical damage to the claimant. Generally not recoverable in negligence, subject to a narrow exception.

Why the hostility? Policy. The courts worry about indeterminate liability — claims of an unpredictable scale, owed to an unpredictable class. The standard illustration is a contractor who negligently cuts a power cable to a factory. Damage to metal that was actually being processed when the power failed is recoverable (physical damage plus consequential loss). The profit lost on metal the factory simply couldn't make that afternoon, with no physical damage at all, is pure economic loss — and it isn't recoverable. Same incident, same factory, two outcomes split by a single conceptual line.

The Hedley Byrne exception: negligent misstatement

The major route to recovering pure economic loss is negligent misstatement, born in Hedley Byrne v Heller. Recovery turns on a special relationship between the parties, built on an assumption of responsibility by the defendant and reasonable reliance by the claimant. In practice the examiner wants you to test for:

1. Special skill or knowledge held by the defendant, on which the claimant could reasonably rely;
2. The defendant knowing (or ought to know) the claimant would rely on the statement for a particular purpose;
3. Reasonable reliance by the claimant, who actually relied on the statement;
4. The absence of any effective disclaimer.

So advice given in a clearly social setting — a barbecue tip from a friend who happens to be an accountant — usually fails because there's no assumption of responsibility. The same advice in a professional consultation, charged for and acted upon, can found a claim. The SQE loves the borderline: a casual-looking exchange that nonetheless carries professional weight, or formal advice neutralised by a well-drafted disclaimer.

Keep negligent misstatement firmly distinct from fraudulent misrepresentation and from contractual misrepresentation under statute — those are different animals tested elsewhere on FLK1. In tort, you're asking about a duty arising from assumed responsibility, not about rescinding a contract.

How to revise tort without drowning in cases

Tort tempts you into case-collecting. Resist it. The exam rewards the candidate who can apply a structure quickly far more than the one who can recite forty case names. A handful of landmark authorities — the snail in the bottle, the bank reference, the cut power cable — anchor the principles; beyond those, learn the test, not the citation.

A few habits that genuinely move the needle:

• Drill by link, not just by topic. Spend a session doing only causation questions across negligence, occupiers and economic loss. You'll start to see how the same "but for" reasoning recurs in different costumes.
• Build a one-line trigger for each rule. "Trespasser + property damage = no 1984 Act recovery." "Pure economic loss + no special relationship = no claim." These triggers are what you'll actually fire under time pressure.
• Time yourself honestly. Each SQE1 assessment — FLK1 and FLK2 — runs to 180 single-best-answer questions, split across two sittings of 2 hours 33 minutes each on the same day. That's a touch over a minute and a half per question. If a tort question is eating three minutes, you're funding it with someone else's time.
• Track which link you misread. When you get a tort question wrong, log whether you mis-spotted duty, breach, causation or damage. Patterns emerge fast, and they're usually fixable.

This is exactly the kind of work a good question bank makes painless. I leaned on the Ant Law SQE Question Bank for precisely this — its tort questions are tagged down to sub-topic, so you can isolate "occupiers' liability" or "pure economic loss" and hammer the link you keep fumbling, rather than wading through a generic mixed set. The wrong-answer book then quietly rebuilds your weak spots through spaced repetition, which beats re-reading notes you already half-know.

Where tort fits in the bigger qualification picture

It's easy to tunnel into a single subject and lose sight of the route. Tort is one of thirteen functioning legal knowledge areas across SQE1, and SQE1 is itself only one stage. To qualify as a solicitor in England and Wales you'll also need a qualifying degree or equivalent, the practical skills assessed in SQE2, two years of Qualifying Work Experience, and a pass on the SRA's character and suitability requirements. The QWE can be gathered across up to four organisations and signed off by a solicitor or the firm's compliance officer — but for the procedural detail, go to the source rather than to forum hearsay.

On the numbers everyone obsesses over — pass rates, fees, sitting windows — be disciplined. These shift, and a figure that was right last year may mislead you now. Roughly speaking, a large minority to around half of candidates pass SQE1 at a given sitting, but the precise published rate moves between diets, so check the SRA's latest assessment statistics rather than trusting a number you saw quoted somewhere. For fees, booking windows and result dates, the authoritative position is always sqe.sra.org.uk. Treat anything else, including older blog posts, as a prompt to verify, not as gospel.

Tort, done properly, is one of the most learnable subjects on FLK1 because its logic is so transferable. Master the four-link chain, hold the two occupiers' regimes apart in your head, and respect the wall the law builds around pure economic loss, and you've covered the ground where most marks are won and lost.

Next step: pick one weak link — say, legal causation or the 1984 Act conditions — and do twenty timed questions on it tonight, logging each mistake by category. You can practise exactly that, with sub-topic tagging and realistic FLK1/FLK2 timing, on the Ant Law SQE Question Bank at antlaw.ai. Questions about the app or your revision plan? The team's at [email protected].