CILEX Professional Qualification (CPQ) Foundation Stage: Law of Tort Syllabus

What three conditions in s 1(3) of the Occupiers' Liability Act 1984 must be met before a duty to a trespasser arises?

(a) The occupier is aware of the danger or has reasonable grounds to believe it exists; (b) the occupier knows or has reasonable grounds to believe the trespasser is or may come into the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

What is the standard of care owed to a trespasser under the Occupiers' Liability Act 1984?

To take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises by reason of the danger concerned (s 1(4)). The duty may be discharged by reasonable warnings or steps to discourage entry (s 1(5)).

Compare the protection given by the 1957 Act and the 1984 Act regarding the type of loss recoverable.

The 1957 Act (lawful visitors) covers personal injury and property damage. The 1984 Act (trespassers) covers death and personal injury only, not damage to the trespasser's property.

What are the four main duties an employer owes to employees at common law (employers' liability)?

To provide: (1) competent staff/fellow employees; (2) a safe place of work; (3) safe and proper plant and equipment; and (4) a safe system of work (including supervision). From Wilsons & Clyde Coal Co v English.

What is the nature of an employer's personal duty of care to employees, and is it delegable?

It is a personal, non-delegable duty; the employer remains liable even if performance is delegated to a competent person. The duty is owed individually to each employee taking account of known vulnerabilities (Paris v Stepney BC).

What is vicarious liability?

A form of secondary/strict liability where one party (typically an employer) is held liable for the tort of another (typically an employee) committed in the course of employment, even though the employer is not personally at fault.

What two elements must be satisfied to establish vicarious liability?

(1) A relationship between the tortfeasor and defendant capable of giving rise to vicarious liability (employment or one 'akin to employment'); and (2) a sufficiently close connection between that relationship and the tort committed.

What is the 'close connection' test for vicarious liability, and which case established it?

Vicarious liability arises where the wrongful conduct is so closely connected with the employee's authorised duties that it is fair and just to hold the employer liable. Established in Lister v Hesley Hall Ltd.

Is an employer vicariously liable for an employee on a 'frolic of their own'?

No. Where the employee acts wholly outside the course of employment for their own purposes (a 'frolic of their own'), there is insufficient connection and the employer is not vicariously liable.

Distinguish private nuisance from public nuisance.

Private nuisance is an unlawful, indirect interference with a person's use or enjoyment of their land (a tort protecting proprietary interests). Public nuisance is a crime that materially affects the comfort/convenience of a class/section of the public; an individual can sue in tort only on proving special damage over and above that suffered by the public.

What interest must a claimant have to sue in private nuisance, and which case confirms this?

The claimant must have a legal interest in the land affected (e.g. owner or tenant in possession); mere occupation without a proprietary interest is insufficient (Hunter v Canary Wharf Ltd).

What factors do courts consider when deciding if an interference amounts to an actionable private nuisance?

The locality/character of the neighbourhood, duration and frequency, sensitivity of the claimant, malice of the defendant, and the social utility of the activity. The interference must be unreasonable.

How does the locality of the area affect a private nuisance claim?

What is reasonable depends on the character of the neighbourhood for amenity nuisances (St Helen's Smelting v Tipping distinguishes nuisance causing physical damage to property — where locality is irrelevant — from nuisance to amenity/comfort, where locality matters).

State the rule in Rylands v Fletcher (1868).

A person who, for their own purposes, brings onto their land and keeps there anything likely to do mischief if it escapes, must keep it in at their peril, and is prima facie liable for all the damage that is the natural consequence of its escape (a form of strict liability).

What are the essential elements of a claim under the rule in Rylands v Fletcher?

(1) The defendant brings and accumulates something on their land for their own purposes; (2) the thing is likely to do mischief/is a recognised danger if it escapes; (3) a 'non-natural use' of land; (4) an actual escape from the land; and (5) reasonably foreseeable damage of the relevant type (Cambridge Water v Eastern Counties Leather).

What is meant by 'non-natural use' of land under Rylands v Fletcher?

Some special use bringing increased danger to others, not the ordinary use of land or such use as is proper for the general benefit of the community (Transco plc v Stockport MBC: requires an extraordinary and unusual use creating exceptionally high risk).

What are the recognised defences to a claim under Rylands v Fletcher?

Act of a stranger, act of God, statutory authority, consent of the claimant, default/fault of the claimant, and contributory negligence (partial).

What is trespass to land, and is proof of damage required?

The direct and intentional (or negligent) interference with land in the possession of another without lawful justification. It is actionable per se — no proof of damage is required.

Name the three torts that make up trespass to the person.

(1) Assault — causing the claimant to reasonably apprehend immediate unlawful force; (2) Battery — the direct and intentional application of unlawful force; and (3) False imprisonment — the unlawful, complete restraint of a person's freedom of movement.

Distinguish assault from battery in the tort of trespass to the person.

Assault is an act causing the claimant to reasonably apprehend the immediate infliction of unlawful force (no contact needed). Battery is the actual direct and intentional application of unlawful force to the claimant. Both are actionable per se.

What two types of statement are recognised in defamation, and how do they differ?

Libel — defamation in a permanent form (e.g. writing, broadcasting), actionable per se. Slander — defamation in a transient form (e.g. spoken words), which generally requires proof of special damage except in defined exceptions.

What must a claimant establish to succeed in a defamation claim, including the 'serious harm' requirement?

That the statement was (1) defamatory (lowering the claimant in the estimation of right-thinking members of society); (2) referred to the claimant; and (3) was published to a third party. Under s 1 Defamation Act 2013, it must also have caused or be likely to cause serious harm to reputation.

Name three statutory defences to defamation under the Defamation Act 2013.

Truth (s 2), honest opinion (s 3), and publication on a matter of public interest (s 4). Other defences include absolute and qualified privilege and the s 4A 'website operators' defence.

Explain the defence of volenti non fit injuria (consent) in tort.

A complete defence where the claimant voluntarily and with full knowledge agreed to accept the risk of harm. It requires (1) full knowledge of the nature and extent of the risk and (2) free and voluntary agreement to run it. If established, the claim fails entirely.

How does the defence of contributory negligence operate, and under what statute?

Under the Law Reform (Contributory Negligence) Act 1945, where the claimant's own fault contributed to their loss, damages are reduced to the extent the court thinks just and equitable. It is a partial defence, not a complete bar.

Explain the defence of ex turpi causa (illegality) in tort.

A complete defence preventing a claimant from recovering where the loss arises from their own illegal or immoral conduct; the court will not assist a claimant founding their claim on an illegal act (assessed on policy grounds — Patel v Mirza).

What are the two main categories of damages in tort, and what is their purpose?

Special damages (specifically provable past pecuniary losses, e.g. lost earnings and expenses to trial) and general damages (non-pecuniary and future losses assessed by the court, e.g. pain, suffering and loss of amenity). The aim is to put the claimant in the position they would have been in had the tort not occurred (restitutio in integrum).

What is the difference between a prohibitory injunction and a mandatory injunction?

A prohibitory injunction orders the defendant to stop doing (or refrain from) a wrongful act; a mandatory injunction requires the defendant to take positive action to undo or correct a wrongful state of affairs. Both are equitable, discretionary remedies.

What is the general limitation period for tort claims, and how does it differ for personal injury, under the Limitation Act 1980?

The general limitation period for tort is 6 years from the date the cause of action accrued. For personal injury claims it is 3 years from the date of the injury or the claimant's date of knowledge (s 11), with judicial discretion to disapply under s 33.