Common Professional Examination (CPE) Tort Law Syllabus

List the requirements for the complete defence of 'volenti non fit injuria' (consent).

(1) The claimant had full knowledge of the nature and extent of the risk; (2) voluntarily and freely agreed to run that risk; and (3) genuinely consented to waive any claim. It is a complete defence.

What is the defence of illegality (ex turpi causa) and its leading modern test?

A claimant cannot recover for loss arising from their own illegal act. Post-Patel v Mirza, courts apply a policy-based 'range of factors' / trio of considerations test rather than a rigid rule.

What is the general rule on recovery of pure economic loss in negligence, and why?

Pure economic loss (financial loss not consequent on physical damage to the claimant's person/property) is generally not recoverable in negligence, for policy reasons including the fear of indeterminate liability (Spartan Steel v Martin).

Under Hedley Byrne v Heller, when can pure economic loss caused by a negligent misstatement be recovered?

Where there is a 'special relationship' built on an assumption of responsibility by the defendant and reasonable reliance by the claimant — typically where advice is given in a context where care is expected.

What factors did Caparo v Dickman identify for a duty in respect of negligent statements causing economic loss?

The maker must know (1) the statement would be communicated to the claimant; (2) for a specific/known purpose; (3) and that the claimant would likely rely on it for that purpose; (4) and the claimant did so rely to their detriment.

Distinguish a 'primary victim' from a 'secondary victim' in psychiatric harm claims.

A primary victim is within the zone of physical danger (or reasonably believes they are). A secondary victim is a witness to a traumatic event involving others, not personally endangered (Page v Smith).

State the four 'Alcock control mechanisms' a secondary victim must satisfy.

(1) A close tie of love and affection with the primary victim; (2) proximity in time and space to the event or its immediate aftermath; (3) perception by their own unaided senses; and (4) a sudden shock causing a recognised psychiatric illness (Alcock v Chief Constable of South Yorkshire).

For a primary victim, must psychiatric injury itself be foreseeable to recover?

No. Per Page v Smith, if physical injury was reasonably foreseeable, the primary victim can recover for psychiatric harm even if that psychiatric harm was not itself foreseeable (the thin-skull rule applies).

What type of psychiatric condition must a claimant prove to recover, and what is excluded?

A medically recognised psychiatric illness (e.g. PTSD, clinical depression). Ordinary grief, anguish, distress or fright falling short of a recognised illness is not recoverable.

What is the general common-law rule regarding liability for omissions (pure omissions)?

There is generally no duty to act to prevent harm or to confer a benefit ('no liability for pure omissions'); liability arises only in exceptional cases such as assumption of responsibility, control, creating the danger, or a special relationship.

List recognised exceptions to the 'no liability for omissions' rule.

(1) Defendant assumed responsibility; (2) defendant had control over a third party who caused harm; (3) defendant created or adopted the source of danger; (4) a special relationship of dependence/control exists (e.g. employer–employee, occupier).

What is the general approach to the liability of public bodies in negligence?

Public bodies owe the same duties as private individuals where ordinary principles apply; courts are cautious about imposing liability for the negligent exercise of statutory powers/policy decisions, but will impose liability for operational negligence or where the body itself creates a danger (Robinson).

List the implied terms of the employer's non-delegable duty of care to employees (Wilsons & Clyde Coal v English).

To provide (1) competent staff/fellow employees; (2) adequate plant and equipment; (3) a safe place/system of work; and (4) safe and effective supervision. The duty is personal and non-delegable.

Under the Occupiers' Liability Act 1957, what duty is owed to lawful visitors?

The 'common duty of care' (s.2): to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are permitted to be there.

How does the OLA 1957 treat children and skilled visitors respectively?

s.2(3): an occupier must be prepared for children to be less careful than adults (higher standard); but may expect a person exercising their calling to guard against special risks ordinarily incident to it.

State the three conditions under s.1(3) of the Occupiers' Liability Act 1984 for a duty to be owed to a trespasser.

(1) The occupier is aware of the danger or has reasonable grounds to believe it exists; (2) knows or has reasonable grounds to believe the trespasser is or may come into the vicinity; and (3) the risk is one against which they may reasonably be expected to offer protection.

What is the standard of duty owed to a trespasser under the OLA 1984, s.1(4)?

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. Note: it covers personal injury only, not property damage.

Define vicarious liability.

A form of secondary/strict liability whereby one party (typically an employer) is held liable for the torts committed by another (typically an employee) where there is a relevant relationship and the tort is sufficiently connected to that relationship.

What two-stage test governs vicarious liability following the modern case law?

Stage 1: Is the relationship one of employment or 'akin to employment'? Stage 2: Is the tort so closely connected with the employment that it is fair and just to impose liability (the 'close connection' test from Lister v Hesley Hall)?

Explain the 'close connection' test for vicarious liability over intentional wrongdoing.

An employer is liable for an employee's intentional wrongful act if it is so closely connected with their employment that it is fair and just to hold the employer liable — e.g. abuse by a warden whose job created the opportunity (Lister v Hesley Hall; Mohamud v Morrison).

Can an employer be vicariously liable for the acts of an independent contractor? Explain.

Generally no — vicarious liability attaches to employees, not independent contractors. Exceptions arise for non-delegable duties or relationships 'akin to employment'. The classic distinction uses control, integration and economic-reality tests.

State the four requirements of the rule in Rylands v Fletcher.

(1) The defendant brought onto and accumulated something on their land; (2) likely to do mischief if it escapes; (3) a non-natural use of land; and (4) the thing escapes and causes foreseeable damage.

Is the rule in Rylands v Fletcher strict liability, and what type of damage is recoverable?

It is strict liability (no need to prove negligence), but the type of damage must be reasonably foreseeable (Cambridge Water). It is now regarded as a sub-species of nuisance; personal injury is not recoverable (Transco).

List the recognised defences to a claim under Rylands v Fletcher.

(1) Act of a stranger; (2) act of God; (3) statutory authority; (4) claimant's own default; and (5) consent/common benefit of the claimant.

Under the Consumer Protection Act 1987, what must a claimant prove for product liability, and what is the basis of liability?

That a product contained a defect and the defect caused damage. Liability is strict — no need to prove negligence. A product is defective if its safety is 'not such as persons generally are entitled to expect' (s.3).

Who is a 'producer' liable under Part I of the Consumer Protection Act 1987?

The manufacturer, an 'own-brander' who holds themselves out as producer, an importer into the UK, and (if the producer cannot be identified) a supplier who fails to identify the producer (s.2).

State the 'development risks' defence under the Consumer Protection Act 1987.

s.4(1)(e): a defendant is not liable if the state of scientific and technical knowledge at the time the product was supplied was not such that a producer of such products might have been expected to discover the defect.

What must a claimant establish to succeed in an action for breach of statutory duty?

(1) The statute imposes a duty intended to protect a class to which the claimant belongs and to give rise to civil liability; (2) the duty was breached; (3) the breach caused the damage; and (4) the harm is of the kind the statute was designed to prevent.

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 requiring a proprietary interest). Public nuisance is a crime affecting a class/section of the public; an individual may sue in tort only if they suffer special damage over and above the public.

List the factors relevant to whether an interference amounts to an actionable private nuisance.

(1) Locality/character of the neighbourhood; (2) duration and frequency; (3) seriousness/degree of interference; (4) the defendant's malice; and (5) any abnormal sensitivity of the claimant (relevant but not decisive). The interference must be unreasonable.

Name the three forms of trespass to the person and their key distinguishing feature.

(1) Assault — causing apprehension of imminent unlawful force; (2) Battery — actual infliction of unlawful force; (3) False imprisonment — complete restraint of liberty without lawful justification. All are actionable per se (without proof of damage) and require intentional/direct acts.

What are the essential elements of trespass to land?

A direct and intentional (or negligent) physical interference with land in the possession of another, without lawful justification. It is actionable per se — no damage need be proved — and protects possession, not ownership.

Distinguish libel from slander in defamation.

Libel is defamation in permanent form (e.g. writing, broadcast) and is actionable per se. Slander is in transient form (e.g. spoken words) and generally requires proof of special damage, subject to exceptions.

What must a claimant establish for defamation, including the modern 'serious harm' requirement?

That the statement (1) was defamatory (lowered 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, the statement must also have caused or be likely to cause 'serious harm' to reputation.

List the main defences to defamation under the Defamation Act 2013.

(1) Truth (s.2); (2) Honest opinion (s.3); (3) Publication on a matter of public interest (s.4); plus common-law/statutory privilege (absolute and qualified) and innocent dissemination/offer of amends.

What is the overriding principle governing the assessment of compensatory damages in tort?

Restitutio in integrum — to put the claimant, so far as money can, in the position they would have been in had the tort not been committed.

Distinguish special damages from general damages in tort.

Special damages are precisely quantifiable pecuniary losses accrued up to trial (e.g. lost earnings, medical bills already incurred). General damages are losses not precisely quantifiable and assessed by the court (e.g. pain, suffering, loss of amenity, future losses).

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

A prohibitory injunction restrains the defendant from continuing a wrongful act (e.g. a continuing nuisance); a mandatory injunction compels the defendant to take positive action to undo a wrong. Both are equitable, discretionary remedies.

What is the claimant's duty to mitigate, and how does it affect damages?

A claimant must take reasonable steps to minimise their loss and cannot recover for losses that reasonable mitigation would have avoided; however, they need only act reasonably and the burden of proving failure to mitigate lies on the defendant.

When may a court award damages in lieu of an injunction (the 'Shelfer' factors)?

Per Shelfer v City of London Electric Lighting, damages may replace an injunction where the injury is small, capable of being estimated in money, adequately compensated by a small payment, and where an injunction would be oppressive — though Coventry v Lawrence gives courts broader discretion.