Learning Outcomes
After reading this article, you will be able to explain how courts assess breach of duty in negligence, the evidential role of common practice, and the limits of relying on industry standards. You will understand the Bolam and Bolitho principles, how judges scrutinise professional opinion, and how these concepts apply to SQE1-style problem scenarios.
SQE1 Syllabus
For SQE1, you are required to understand how breach of duty is established in negligence, including the significance and limits of common practice. Focus your revision on:
- the objective standard of care and the reasonable person test
- the evidential value of common practice and industry standards
- the Bolam principle for professional negligence
- the Bolitho qualification and judicial scrutiny of professional opinion
- how courts balance common practice with the legal standard of care
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the evidential significance of a defendant complying with common industry practice in a negligence claim?
- Under what circumstances can a court reject a responsible body of professional opinion when applying the Bolam test?
- True or false? If a defendant follows common practice, they can never be found in breach of duty.
- Which case established that professional opinion must be capable of withstanding logical analysis?
Introduction
When considering breach of duty in negligence, the court must decide if the defendant’s conduct fell below the standard of care expected of a reasonable person in the circumstances. One important factor is whether the defendant followed common practice or industry standards. However, compliance with common practice is not conclusive. This article explains how courts treat common practice, the Bolam and Bolitho principles, and the limits of relying on industry norms.
The Objective Standard and Common Practice
The standard of care in negligence is objective. The defendant is compared to a hypothetical reasonable person in the same situation.
Key Term: standard of care The level of caution and skill expected from a reasonable person in the defendant’s position.
When assessing breach, courts often consider what is commonly done in the relevant field. If the defendant acted in line with general practice, this is strong evidence that they were not negligent. However, it is not a complete defence.
Key Term: common practice The usual or accepted way of doing things in a particular trade, profession, or industry.
Common Practice as Evidence—Not a Defence
Courts treat common practice as persuasive but not decisive. If most people in the industry act in a certain way, it suggests that the conduct is reasonable. But if the practice itself is careless or outdated, following it will not excuse a defendant from liability.
Key Term: breach of duty A failure to meet the standard of care required by law, resulting in a risk of harm to others.
Worked Example 1.1
A warehouse owner stores chemicals in open containers, as is standard in the industry. A fire breaks out, causing toxic fumes to escape and injure neighbours. Can the owner rely on common practice to avoid liability?
Answer: The owner’s compliance with industry practice is evidence that they acted reasonably. However, if the court finds that the practice is unsafe and a reasonable person would have used safer storage, the owner may still be found in breach of duty.
The Bolam Principle: Professional Negligence
For professionals, the standard of care is that of a reasonable person with the same skill or proficiency. The Bolam test states that a professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of professionals in that field.
Key Term: Bolam principle A professional is not negligent if their actions are supported by a responsible body of professional opinion, even if others disagree.
This means that common professional practice is highly relevant in medical, legal, and technical negligence claims.
Worked Example 1.2
A doctor chooses not to warn a patient of a rare risk associated with a procedure. Some doctors would have warned, but a responsible body of doctors would not. Is the doctor negligent?
Answer: Under the Bolam principle, the doctor is not negligent if their approach is supported by a responsible body of medical opinion.
The Bolitho Qualification: Logical Analysis
The Bolam principle is not absolute. In Bolitho v City and Hackney Health Authority, the House of Lords held that the court is not bound to accept professional opinion if it is not capable of withstanding logical analysis.
Key Term: Bolitho qualification The court may reject a responsible body of professional opinion if it is unreasonable or illogical.
This means that judges can scrutinise expert evidence and disregard it if it is not rational or defensible.
Key Term: responsible body of opinion A group of professionals whose views are considered reasonable and competent in the field.
Worked Example 1.3
An engineer follows a widely accepted method for building a bridge, but the method ignores recent safety research. A collapse occurs. Can the court find the engineer negligent despite following common practice?
Answer: Yes. If the court finds that the common method is illogical or unsafe in light of current knowledge, it can reject the responsible body of opinion and find the engineer in breach of duty.
When Common Practice Will Not Excuse Negligence
Courts may find a defendant liable even if they followed common practice where:
- the practice is clearly unsafe or outdated
- new risks or knowledge have emerged
- the practice fails to address foreseeable dangers
Exam Warning Do not assume that following common practice is a complete defence. Courts will consider whether the practice itself is reasonable and up to date.
Summary Table: Common Practice and Breach of Duty
| Factor | Effect on Breach of Duty Assessment |
|---|---|
| Defendant followed common practice | Strong evidence of reasonableness, but not conclusive |
| Common practice is unsafe | Court may find breach even if practice is widespread |
| Professional opinion (Bolam) | Not negligent if supported by responsible body |
| Opinion is illogical (Bolitho) | Court may reject and find breach |
Key Point Checklist
This article has covered the following key knowledge points:
- The standard of care is objective and based on the reasonable person.
- Common practice is persuasive evidence but not a defence if the practice is unsafe.
- The Bolam principle protects professionals who follow a responsible body of opinion.
- The Bolitho qualification allows courts to reject illogical or unreasonable professional opinion.
- Courts may find breach of duty even where the defendant followed industry standards.
Key Terms and Concepts
- standard of care
- common practice
- breach of duty
- Bolam principle
- Bolitho qualification
- responsible body of opinion
