AQA A Level Law (7162): Tort Rules, Cases, Defences and Remedies – Study Guide

Tort in AQA A-level Law (7162) section 3.3 is the law of civil wrongs: when one person must compensate another for injury, damage or loss they caused. It is examined on Paper 2, where it carries 75 of the 100 marks, through problem questions that ask you to advise a claimant or defendant and essays that evaluate the law. This guide goes through every subtopic with the authorities you need; the shorter Tort overview explains how the subtopics fit together.

Where this fits in the specification

The specification lists nine items for tort: the rules of tort law, theory of tort law, negligence for physical injury and property damage, negligence for economic loss and psychiatric injury, occupiers’ liability, nuisance and the escape of dangerous things, vicarious liability, defences and remedies. Answers follow one pattern: establish the tort, then consider defences, then remedies.

What are the rules of tort law?

The specification defines this as the rules and principles concerning liability and fault in negligence, occupiers’ liability, nuisance and vicarious liability, and the associated defences and remedies. The claimant sues the defendant in the civil courts and must prove the claim on the balance of probabilities. Most of the law is common law, built through precedent; the main statutes are the Occupiers’ Liability Acts 1957 and 1984, the Law Reform (Contributory Negligence) Act 1945 and the Compensation Act 2006. Liability is usually based on fault, but vicarious liability and the rule in Rylands v Fletcher impose liability without personal fault.

Theory of tort law

The specification names five policy areas to analyse and evaluate:

• Duty of care for physical harm: the Caparo three-part test lets courts weigh whether it is fair, just and reasonable to impose a duty, which controls the expansion of liability.
• Pure economic loss and psychiatric injury: courts restrict both through policy, fearing a “floodgates” of claims and liability out of proportion to fault.
• The objective standard of care: the reasonable person standard balances the risk against its seriousness, the cost of precautions and the social value of the activity.
• Injunctions: the court balances the claimant’s right to enjoy land against the defendant’s activity and the public interest (Miller v Jackson, 1977; Coventry v Lawrence, 2014).
• Vicarious liability: its purpose is to ensure victims are compensated by a party able to pay and insure, to spread losses, and to encourage employers to supervise and train staff.

Negligence: physical injury and property damage

Duty of care

The neighbour principle in Donoghue v Stevenson (1932): you must take reasonable care to avoid acts or omissions you can reasonably foresee would be likely to injure your neighbour, meaning persons so closely and directly affected that you ought to have them in contemplation. In novel situations the Caparo three-part test (Caparo Industries v Dickman, 1990) asks whether harm was reasonably foreseeable, whether there was sufficient proximity, and whether it is fair, just and reasonable to impose a duty. Robinson v Chief Constable of West Yorkshire Police (2018) held that where a duty is already established by precedent, the court applies it without re-running Caparo; the test is for genuinely new situations, developed incrementally.

Breach of duty

The standard is objective: what would a reasonable person have done (Blyth v Birmingham Waterworks, 1856)? A learner driver is judged as a reasonably competent driver (Nettleship v Weston, 1971); a professional against a responsible body of professional opinion (Bolam v Friern Hospital Management Committee, 1957); a child against a reasonable child of the same age (Mullin v Richards, 1998). The court considers:

Factor	Effect	Case
Probability of harm	Low risk may not need precautions	Bolton v Stone (1951)
Seriousness of harm	Greater care for vulnerable claimants	Paris v Stepney BC (1951)
Cost of precautions	Not required to take impractical measures	Latimer v AEC (1953)
Social utility	Emergency purposes can justify risk	Watt v Hertfordshire CC (1954); Compensation Act 2006, s1

Damage: causation and remoteness

Factual causation uses the “but for” test: the hospital escaped liability in Barnett v Chelsea and Kensington HMC (1969) because the patient would have died anyway. A new intervening act can break the chain (Knightley v Johns, 1982). Legal causation requires that the type of damage was reasonably foreseeable (The Wagon Mound (No 1), 1961); the precise way it happened need not be (Hughes v Lord Advocate, 1963), and the defendant takes the claimant as found (thin skull rule, Smith v Leech Brain, 1962).

Negligence: economic loss and psychiatric injury

Pure economic loss

Negligent acts: economic loss consequential on physical damage is recoverable, but pure economic loss is not (Spartan Steel v Martin, 1973: damages for the damaged melt and the profit on it, but not for profits lost while the power was off). A defective building that has not caused damage to other property is treated as pure economic loss (Murphy v Brentwood DC, 1991).

Negligent misstatements: liability arises from a special relationship (Hedley Byrne v Heller, 1964): the defendant has special skill or knowledge, knows the claimant will rely on the advice for a particular purpose, and the claimant reasonably relies on it. In Caparo auditors owed no duty to investors at large. A friend with apparent expertise may owe a duty (Chaudhry v Prabhakar, 1989). A clear disclaimer may prevent liability, as in Hedley Byrne itself, subject to the Unfair Contract Terms Act 1977.

Psychiatric injury

The claimant must suffer a recognised psychiatric illness, not mere grief or distress. A primary victim is in the zone of physical danger; if physical injury was foreseeable, psychiatric injury is recoverable even if no physical injury occurs (Page v Smith, 1996). A secondary victim witnesses harm to another and must satisfy the control mechanisms in Alcock v Chief Constable of South Yorkshire Police (1992): a close tie of love and affection with the victim; proximity in time and space to the accident or its immediate aftermath (McLoughlin v O’Brian, 1983); perception with their own unaided senses; and that a person of reasonable fortitude would have suffered psychiatric injury. Rescuers and employees are not treated as primary victims unless they were themselves in danger (White v Chief Constable of South Yorkshire, 1998), and in medical negligence cases a relative is not a secondary victim of a later death or collapse caused by an earlier failure of care (Paul v Royal Wolverhampton NHS Trust, 2024).

Occupiers’ liability

Occupiers’ Liability Act 1957 (visitors). An occupier is whoever has a sufficient degree of control over premises (Wheat v E Lacon & Co, 1966). Under s2(2) the occupier owes the common duty of care: to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted. Occupiers must be prepared for children to be less careful than adults (s2(3)(a); Glasgow Corporation v Taylor, 1922, poisonous berries as an allurement), though for very young children parents share responsibility (Phipps v Rochester Corporation, 1955). They may expect specialists to guard against risks of their trade (s2(3)(b); Roles v Nathan, 1963). A sufficient warning may discharge the duty (s2(4)(a)), and an occupier who reasonably chose and checked a competent independent contractor may escape liability for the contractor’s faulty work (s2(4)(b); Haseldine v Daw, 1941).

Occupiers’ Liability Act 1984 (trespassers). Under s1(3) a duty arises only if the occupier is aware of the danger or has reasonable grounds to believe it exists, knows or has reasonable grounds to believe a non-visitor is or may come into its vicinity, and the risk is one against which they may reasonably be expected to offer protection. The duty is to take reasonable care to see the trespasser does not suffer injury from the danger (s1(4)) and can be discharged by a warning (s1(5)). There is no duty for obvious risks voluntarily taken (Ratcliff v McConnell, 1999; Tomlinson v Congleton BC, 2003). Only personal injury is covered, not damage to property (s1(8)).

Nuisance and the escape of dangerous things

Private nuisance

Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or some right over it. The claimant needs an interest in the land (Hunter v Canary Wharf, 1997). Whether an interference is unreasonable depends on:

• Locality — “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” (Sturges v Bridgman, 1879).
• Duration — continuing interferences are more likely to be nuisances, though temporary building work can be (De Keyser’s Royal Hotel v Spicer Bros, 1914).
• Malice — deliberate interference makes conduct unreasonable (Christie v Davey, 1893; Hollywood Silver Fox Farm v Emmett, 1936).
• Sensitivity — the claimant cannot complain of harm only to an unusually sensitive use (Robinson v Kilvert, 1889).

The rule in Rylands v Fletcher

From Rylands v Fletcher (1868), a defendant is strictly liable where they bring onto their land something likely to do mischief if it escapes, which is a non-natural use of land, it escapes (Read v J Lyons, 1947), and it causes damage of a foreseeable type (Cambridge Water v Eastern Counties Leather, 1994). Non-natural use means an extraordinary and unusual use creating an exceptionally high risk (Transco v Stockport MBC, 2003).

Vicarious liability

Nature and purpose: an employer is liable for torts committed by an employee in the course of employment, although the employer is not personally at fault.

Testing employment status: the courts look at control, payment, who provides equipment and who bears the financial risk (Ready Mixed Concrete v Minister of Pensions, 1968). A relationship “akin to employment” can be enough (Various Claimants v Catholic Child Welfare Society, 2012), but a genuinely independent contractor does not make the hirer vicariously liable (Various Claimants v Barclays Bank, 2020).

Course of employment: an act forbidden by the employer can still be within employment if done for the employer’s purposes (Limpus v London General Omnibus, 1862; Rose v Plenty, 1976), but not a “frolic of his own” (Hilton v Thomas Burton, 1961). For deliberate wrongdoing the test is whether there is a close connection between the employment and the tort (Lister v Hesley Hall, 2001; Mohamud v WM Morrison, 2016). An employee pursuing a personal vendetta was outside it (WM Morrison v Various Claimants, 2020).

Other areas: the relationship akin to employment has extended liability to prison authorities for prisoners working in prison kitchens (Cox v Ministry of Justice, 2016) and to religious bodies for their members.

Defences

• Contributory negligence (Law Reform (Contributory Negligence) Act 1945): damages are reduced to reflect the claimant’s share of responsibility, for example failing to wear a seat belt (Froom v Butcher, 1976).
• Consent (volenti non fit injuria): the claimant knew of the risk and voluntarily accepted it; a complete defence. Mere knowledge is not enough (Smith v Baker, 1891), but it succeeded where workers deliberately ignored safety rules (ICI v Shatwell, 1965) and where a passenger flew with an obviously drunk pilot (Morris v Murray, 1991). It cannot be used against car passengers (Road Traffic Act 1988, s149).
• Nuisance and Rylands defences: prescription after 20 years of actionable nuisance (Sturges v Bridgman); statutory authority (Allen v Gulf Oil, 1981). Coming to the nuisance is no defence (Miller v Jackson; Coventry v Lawrence). For Rylands, Act of God (Nichols v Marsland, 1876), act of a stranger (Rickards v Lothian, 1913), consent and statutory authority.

Remedies

Compensatory damages aim to put the claimant in the position they would have been in had the tort not been committed. For personal injury, special damages cover quantifiable losses up to trial, such as lost earnings and medical costs, and general damages cover pain, suffering, loss of amenity and future losses. For property, the measure is usually the cost of repair or the reduction in value. Recoverable economic loss covers consequential losses such as profit on damaged goods. The claimant must take reasonable steps to mitigate the loss and cannot recover for loss that reasonable steps would have avoided.

Injunctions are equitable and discretionary orders, usually prohibitory, used mainly in nuisance. The court may limit the activity rather than stop it (Kennaway v Thompson, 1981), refuse an injunction where the public benefit is high (Miller v Jackson), or award damages in lieu (Shelfer v City of London Electric Lighting, 1895, applied more flexibly in Coventry v Lawrence).

Worked example

Facts: a factory owner stores large tanks of solvent at the edge of the site. A tank leaks and the solvent seeps onto a neighbour’s land, killing his crops. The leak happened because a contractor fitted a faulty valve.

1. Rylands v Fletcher: the solvent was brought onto the land, is likely to do mischief if it escapes, and bulk storage is arguably an extraordinary use (Transco). It escaped and caused foreseeable damage to crops (Cambridge Water).
2. Defence: the contractor is not a stranger, as the owner controlled the work, so Rickards v Lothian does not help.
3. Negligence alternative: the neighbour could sue in negligence, but must prove breach; under Rylands he need not.
4. Remedy: damages for the crop loss, and an injunction may be sought if leaks continue.

Common mistakes

• Running Caparo where a duty already exists (Robinson).
• Confusing primary and secondary victims, or forgetting the Alcock control mechanisms.
• Using the 1957 Act for a trespasser.
• Saying coming to the nuisance is a defence.
• Treating vicarious liability as a separate tort rather than liability for someone else’s tort.
• Forgetting mitigation when calculating damages.

Frequently asked questions

What is the Caparo test? It is the three-part test from Caparo Industries v Dickman (1990) used in novel duty situations: was the harm reasonably foreseeable, was there sufficient proximity, and is it fair, just and reasonable to impose a duty?

Who is a secondary victim? A person who suffers psychiatric illness from witnessing injury to someone else. They must satisfy the Alcock control mechanisms, including a close tie of love and affection and presence at the event or its immediate aftermath.

What is the difference between private nuisance and Rylands v Fletcher? Private nuisance concerns unreasonable, usually continuing, interference with the use of land. Rylands imposes strict liability for a single escape of something dangerous from a non-natural use of land.

When is an employer vicariously liable? When the wrongdoer is an employee, or in a relationship akin to employment, and the tort is committed in the course of employment or has a close connection with it.

Check your understanding

1. What did Robinson (2018) decide about Caparo? It applies only to genuinely novel situations; established duties are simply applied.
2. Why did the claimant in Barnett fail? The patient would have died anyway, so the breach did not cause the death.
3. Which Act governs injuries to trespassers? The Occupiers’ Liability Act 1984.
4. Name two factors relevant to unreasonableness in private nuisance. Locality, duration, malice or sensitivity.
5. What is the effect of contributory negligence? Damages are reduced in proportion to the claimant’s share of fault.

Official syllabus

AQA A-level Law (7162) specification, version 1.0, section 3.3 Tort — aqa.org.uk.