Breach of duty - Current state of knowledge

Learning Outcomes

After reading this article, you will be able to explain how breach of duty is established in negligence, apply the objective standard of care, identify when special standards apply (such as for professionals or children), and recognise how courts assess whether a defendant has fallen below the required standard. You will also understand key methods of proving breach, including the use of res ipsa loquitur.

SQE1 Syllabus

For SQE1, you are required to understand how breach of duty is determined in negligence claims. In your revision, focus on:

• the objective standard of care and the 'reasonable person' test
• factors affecting the standard of care (likelihood and seriousness of harm, cost and practicality of precautions, social value of conduct)
• special standards for professionals, children, and unskilled defendants
• the relevance of knowledge available at the time of the alleged breach
• methods for proving breach, including res ipsa loquitur and relevant criminal convictions

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.

1. What is the main test used by courts to determine if a defendant has breached their duty of care in negligence?
   1. The defendant’s personal intentions
   2. The standard of the reasonable person
   3. The standard set by the claimant
   4. The strict liability test

2. True or false? A newly qualified doctor is judged by the standard of a competent doctor in that post, not by their own inexperience.

3. Which of the following factors may increase the standard of care required?
   1. The risk of harm is very unlikely
   2. The potential harm is very serious
   3. The cost of precautions is extremely high
   4. The defendant’s actions have high social value
4. In which situation might the doctrine of res ipsa loquitur assist a claimant?
   1. A car accident with multiple eyewitnesses
   2. A patient suffers injury during surgery, but the cause is unknown and under the hospital’s control
   3. A slip on a wet floor with clear warning signs
   4. A defendant admits to careless driving

Introduction

Once a duty of care has been established, the next step in a negligence claim is to show that the defendant breached that duty. Breach of duty occurs when the defendant’s conduct falls below the standard required by law in the circumstances. This standard is usually assessed objectively, by reference to the actions of a hypothetical “reasonable person.” The court will consider all the circumstances to decide if the defendant’s behaviour was sufficiently careful.

Key Term: breach of duty Breach of duty is when a defendant’s conduct falls below the standard of care required by law, exposing others to a foreseeable risk of harm.

The Objective Standard: The Reasonable Person

The law uses an objective test to determine breach. The defendant is compared to the “reasonable person”—someone of ordinary prudence, not overly cautious or reckless. The defendant’s personal skills or intentions are generally irrelevant.

Key Term: standard of care The level of caution or competence expected from a reasonable person in the defendant’s position, taking into account all the circumstances.

Factors Affecting the Standard of Care

The court will weigh several factors to decide what the reasonable person would have done:

• Likelihood of harm: The more likely harm is, the more care is required.
• Seriousness of harm: If the potential harm is grave, a higher standard is expected, even if the risk is small.
• Cost and practicality of precautions: If precautions are easy and cheap, failure to take them is more likely to be negligent. If precautions are very costly or impractical, not taking them may be reasonable.
• Social value of conduct: If the defendant’s actions have high social value (e.g., emergency rescue), the standard may be slightly relaxed, but not abandoned.
• Common practice: Following common practice in a trade or profession is evidence of reasonable care, but not conclusive.

Worked Example 1.1

A supermarket’s floor becomes slippery after a sudden rainstorm. Staff put up warning signs and mop the area, but a customer slips in a spot not yet cleaned.

Question: Has the supermarket breached its duty of care?

Answer: Probably not. The supermarket took reasonable steps to warn and clean. Closing the store would be disproportionate. The standard is reasonable care, not absolute safety.

Special Standards of Care

The reasonable person test is modified in certain situations.

Professionals and Skilled Defendants

A professional (such as a doctor or solicitor) is judged by the standard of a reasonably competent member of that profession, not the average person.

Key Term: Bolam test 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.

If there are conflicting professional opinions, the court will decide if the practice relied on is logical and reasonable.

Key Term: Bolitho principle Even if a body of professional opinion supports the defendant’s actions, the court may find them negligent if the opinion is not logically defensible.

In medical cases involving consent, the standard is what a reasonable patient would want to know about material risks.

Key Term: material risk A risk is material if a reasonable person in the patient’s position would likely attach significance to it, or if the doctor knows the patient would.

Unskilled Defendants and Learners

A learner or inexperienced person is held to the same standard as someone competent in that activity. For example, a learner driver is judged by the standard of a qualified driver.

Children

Children are judged by the standard of a reasonable child of the same age, not by adult standards.

Emergencies

In emergencies, the standard may be relaxed slightly, but the defendant must still act reasonably in the circumstances.

The State of Knowledge at the Time

Defendants are judged by what was known or discoverable at the time of the alleged breach—not with hindsight. If a risk was unknown or undiscoverable, failure to guard against it is not negligent.

Worked Example 1.2

A hospital uses a sterilisation method that is later found to allow bacteria through invisible cracks. At the time, no one knew this risk.

Question: Was the hospital negligent for not using a different method?

Answer: No. The hospital cannot be blamed for failing to guard against a risk that was not known or discoverable at the time.

Proving Breach of Duty

The claimant must prove, on the balance of probabilities, that the defendant breached their duty. This is usually done with evidence of what happened, but sometimes the facts “speak for themselves.”

Key Term: res ipsa loquitur A doctrine allowing the court to infer negligence from the mere occurrence of an accident, where the cause is unknown, the thing causing harm was under the defendant’s control, and such accidents do not normally happen without negligence.

If res ipsa loquitur applies, the defendant must provide an explanation to rebut the inference of negligence. The legal burden of proof remains with the claimant.

Key Term: Civil Evidence Act 1968 (s 11) A criminal conviction for an offence involving negligence can be used as evidence of breach in a civil claim, shifting the burden to the defendant to show they were not negligent.

Worked Example 1.3

A patient is injured during surgery, but the exact cause is unknown. The surgical instruments and environment were under the hospital’s control.

Question: Can the patient rely on res ipsa loquitur?

Answer: Yes. If the injury would not normally occur without negligence and the hospital had control, the court may infer negligence unless the hospital can provide a non-negligent explanation.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Breach of duty is established by comparing the defendant’s conduct to the objective standard of the reasonable person.
• The standard of care may be raised if the risk or seriousness of harm is high, or if precautions are easy and cheap.
• Professionals are judged by the Bolam test; courts may reject illogical professional practices (Bolitho).
• Children are judged by the standard of a reasonable child of the same age.
• Inexperience is not a defence; learners are held to the same standard as competent persons.
• Defendants are judged by knowledge available at the time, not with hindsight.
• Claimants must prove breach, but res ipsa loquitur and criminal convictions may assist.

Key Terms and Concepts

• breach of duty
• standard of care
• Bolam test
• Bolitho principle
• material risk
• res ipsa loquitur
• Civil Evidence Act 1968 (s 11)