Learning Outcomes
This article examines the factors courts consider when determining if a defendant has breached their duty of care in negligence. It focuses on the assessment of the likelihood and magnitude of potential harm, and the practicality of taking precautions against that harm. After studying this material, you should be able to identify and apply these key factors to SQE1 assessment scenarios, understanding how they influence the standard of care expected from the reasonable person. This knowledge is essential for analysing factual matrix questions typical of the SQE1 exam.
SQE1 Syllabus
For SQE1, you are required to understand how the standard of care in negligence is determined and applied. This includes analysing the specific factors that courts weigh when deciding if a defendant's actions fell below the expected standard. Your revision should focus on:
- The objective standard of care based on the ‘reasonable person’.
- How the likelihood of harm occurring influences the required standard of care.
- How the potential seriousness (magnitude) of harm affects the standard of care.
- The assessment of the practicality and cost of taking precautions against a risk.
- The balancing exercise undertaken by courts involving these factors.
- Applying these principles to specific factual scenarios to determine breach.
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.
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What is the general standard used by courts to assess whether a defendant has breached their duty of care?
- The standard of the defendant themselves, considering their experience.
- The standard of the highest possible care achievable.
- The standard of the reasonable person in the circumstances.
- The standard set by industry regulations only.
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Which case established that a low probability of harm occurring might mean a defendant is not negligent for failing to take precautions?
- Paris v Stepney Borough Council
- Latimer v AEC Ltd
- Bolton v Stone
- Watt v Hertfordshire County Council
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True or False: If the potential harm is very serious, a defendant might be expected to take precautions even if the risk of that harm occurring is small.
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Which factor considers the cost and difficulty involved in taking steps to eliminate or reduce a risk?
- Magnitude of harm
- Likelihood of harm
- Social utility
- Practicality of precautions
Introduction
Once it is established that a defendant (D) owed a claimant (C) a duty of care (see previous articles on Duty of Care), the next essential element in a negligence claim is to determine whether D breached that duty. A breach occurs when D’s conduct falls below the standard of care expected by law. This article explores the key factors that courts evaluate to decide if the required standard has been met: the likelihood of the harm occurring, the potential severity (magnitude) of that harm, and the practicality of taking preventative measures.
The Standard of Care: The Reasonable Person
The basis for assessing breach of duty is the standard of the reasonable person. The law requires D to behave as a hypothetical reasonable person would have acted in the same circumstances. This is an objective test, meaning it doesn’t usually consider D’s individual shortcomings, like being inexperienced or clumsy.
Key Term: Standard of Care
The level of care expected by law from a person in particular circumstances to avoid causing foreseeable harm to others. In negligence, this is typically the standard of the 'reasonable person'.Key Term: Reasonable Person
A hypothetical, objective legal standard representing an ordinary individual exercising average care, skill, and judgment in conduct. It is used to determine if conduct was negligent.
The standard is not one of perfection; the reasonable person is not expected to foresee every possible risk or take every conceivable precaution. The law balances the need to protect C from harm against the freedom of D to act, and the social utility of D's conduct.
Factors Influencing the Standard of Care
Courts consider several factors when deciding what the reasonable person would have done and whether D’s conduct fell below that standard. This often involves a balancing exercise.
Likelihood of Harm
The greater the probability or likelihood that D's actions could cause harm, the more care the reasonable person would be expected to take. If a risk is very small or far-fetched, the reasonable person might be justified in taking fewer or no precautions.
Key Term: Likelihood of Harm
The probability or chance of injury or damage occurring as a result of the defendant's conduct.
The key case illustrating this principle is Bolton v Stone [1951] AC 850.
Worked Example 1.1
A cricket club has a ground surrounded by a high fence. Over many years, cricket balls have only very rarely been hit out of the ground onto the adjacent quiet road. On one occasion, a ball is hit out and strikes a pedestrian walking past. Is the cricket club likely to be in breach of duty?
Answer: Applying the principle from Bolton v Stone, the club is unlikely to be in breach. Although harm was foreseeable, its likelihood was extremely low. A reasonable person might deem it acceptable not to take further, potentially expensive, precautions (like raising the fence even higher) against such a small risk.
Conversely, if the risk of harm is high, greater precautions are expected.
Magnitude of Harm
This factor relates to the seriousness or severity of the potential injury or damage if the risk materialises. Even if the likelihood of harm is low, if the potential consequences are very serious, the reasonable person would be expected to take greater precautions.
Key Term: Magnitude of Harm
The potential severity or seriousness of the injury or damage that could result if a risk materialises.
The principle is demonstrated in Paris v Stepney Borough Council [1951] AC 367.
Worked Example 1.2
An employee at a garage has only one functioning eye, a fact known to his employer. The employer does not provide safety goggles for tasks like chipping metal, although the risk of eye injury for such tasks is generally considered low for workers with normal vision. The employee suffers an injury to his good eye, resulting in total blindness. Is the employer likely to be in breach of duty?
Answer: Yes, the employer is likely in breach. Applying the principle from Paris v Stepney Borough Council, although the likelihood of injury might have been low, the magnitude of potential harm to this specific employee (total blindness) was extremely high. The reasonable employer, knowing the employee's vulnerability, should have taken the simple precaution of providing goggles.
This principle interacts with the 'eggshell skull' rule in assessing damages, but here it influences the standard of care required in the first place.
Practicality of Precautions
Courts weigh the likelihood and magnitude of harm against the cost and feasibility of taking precautions to eliminate or reduce the risk. If a risk can be mitigated easily and affordably, a reasonable person would be expected to do so. If the precautions are disproportionately expensive or impractical compared to the risk, the defendant may not be in breach for failing to take them.
Key Term: Practicality of Precautions
The reasonableness of the measures required to eliminate or reduce a risk, considering factors like cost, difficulty, and effectiveness relative to the level of risk.
Latimer v AEC Ltd [1953] AC 643 is a key authority.
Worked Example 1.3
A factory floor becomes slippery after an unprecedented flood mixes water with oil. The occupiers spread all available sawdust but cannot cover the entire area. Closing the factory would be the only way to completely eliminate the risk of slipping, but this would be very costly. An employee slips on an uncovered patch and is injured. Have the occupiers breached their duty?
Answer: Unlikely. Following Latimer v AEC Ltd, the occupiers took reasonable precautions (spreading sawdust) given the circumstances. The risk remaining was relatively small compared to the significant cost and disruption of closing the factory. The court balanced the risk against the practicality of the only remaining precaution.
Exam Warning
Remember that these factors are weighed together. A very low likelihood of harm (Bolton v Stone) might be outweighed by a very high magnitude of potential harm (Paris v Stepney), especially if precautions are simple and cheap. Conversely, even a significant risk might not lead to liability if the necessary precautions are prohibitively expensive or impractical (Latimer v AEC).
Social Utility of the Defendant's Conduct
The purpose or social value of the defendant's activity is also relevant. If the defendant's actions serve a socially useful purpose, the courts may be more lenient regarding the risks taken.
Revision Tip
Think about emergency services. In Watt v Hertfordshire County Council [1954] 1 WLR 835, the risk of injury in transporting unsecured heavy lifting gear was justified by the emergency situation (saving a life). However, this does not give carte blanche; emergency services must still act reasonably in the circumstances.
The Compensation Act 2006, s 1, allows courts considering negligence claims to have regard to whether imposing liability might prevent desirable activities from being undertaken or discourage people from participating in them. The Social Action, Responsibility and Heroism Act 2015 (SARAH Act) further requires courts to consider whether the defendant was acting for the benefit of society, demonstrating a predominantly responsible approach, or acting heroically in an emergency. While reinforcing the common law position, these Acts emphasise the importance of social context.
Balancing the Factors
Determining breach of duty invariably involves balancing these factors. The court asks what precautions the reasonable person, considering the likelihood and magnitude of harm, the cost/practicality of precautions, and the social utility of the activity, would have taken. If D’s conduct fell short of this standard, they have breached their duty.
Revision Tip: Balancing Factors
In problem questions, identify each relevant factor presented in the facts. Analyse the likelihood and potential seriousness of the harm. Consider what precautions could have been taken and how practical/costly they were. Mention social utility if relevant. Conclude by explaining how a court would likely balance these factors to determine if the reasonable person standard was met.
Key Point Checklist
This article has covered the following key knowledge points:
- Breach of duty in negligence means falling below the standard of care required by law.
- The standard is generally objective: that of the reasonable person.
- Courts consider several factors to determine the standard in specific circumstances.
- Likelihood of Harm: Higher probability requires more care.
- Magnitude of Harm: Greater potential severity requires more care.
- Practicality of Precautions: Risk is balanced against the cost and difficulty of preventative measures.
- Social Utility: The purpose of the defendant's activity can influence the expected standard.
- These factors are weighed together in a balancing exercise.
- Relevant legislation (Compensation Act 2006, SARAH Act 2015) reinforces consideration of social context.
Key Terms and Concepts
- Standard of Care
- Reasonable Person
- Likelihood of Harm
- Magnitude of Harm
- Practicality of Precautions
