Breach of duty - No lowered standard for adults

Learning Outcomes

This article explains the fixed, objective standard of care applied to adult defendants in negligence and how it is tested in SQE1 assessments. It clarifies the reasonable person test, the activity-based comparator, and why inexperience, trainee status, or lack of skill does not lower the standard for adults. It examines how courts evaluate breach using structured factors such as likelihood and gravity of harm, cost and practicality of precautions, social utility, and the defendant’s state of knowledge at the time of the alleged negligence. It details how the professional standard operates, including Bolam, the Bolitho qualification, and the distinct approach to risk disclosure after Montgomery. It explores the narrow situations in which the standard is modified, including children, sudden incapacity through illness, emergencies, and fast-moving sporting contexts, while emphasising that the assessment remains objective. It applies these principles to SQE1-style problem questions, showing how to identify the correct comparator, avoid hindsight bias, and deal with common traps such as assuming a lower standard for learners or conflating Bolam with Montgomery.

SQE1 Syllabus

For SQE1, you are required to understand how the standard of care is determined for adult defendants in negligence, with a focus on the following syllabus points:

• the objective nature of the standard of care for adults
• the application of the reasonable person test
• why inexperience or lack of skill does not reduce the standard
• the main exceptions to the rule (children, physical or mental impairment, emergencies)
• how these principles are applied in professional and non-professional contexts
• factors used by courts to assess breach (likelihood of harm, seriousness of injury, cost of precautions, and social utility)
• the relevance of state of knowledge at the time of the alleged negligence
• professional comparators and the role of the Bolam test (as qualified by Bolitho) and risk disclosure duties in clinical contexts
• statutory context: Compensation Act 2006 (social value considerations) and the Social Action, Responsibility and Heroism Act 2015 (limited reinforcement of social utility)

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 standard of care applied to an adult defendant in a negligence claim?
2. Does a learner driver owe the same standard of care as an experienced driver?
3. Which of the following is an exception to the objective standard of care for adults? a) Inexperience b) Physical impairment c) Lack of training d) Forgetfulness
4. True or false? A newly qualified doctor is held to a lower standard of care than a senior consultant.

Introduction

In negligence law, the standard of care is a key element in determining whether a defendant has breached their duty. For adults, the law applies a fixed, objective standard: the actions of a reasonable person. This standard does not change because of inexperience, lack of training, or personal shortcomings. Understanding this principle is essential for answering SQE1 questions on breach of duty.

Key Term: objective standard of care
The legal test that measures a defendant’s conduct against what a reasonable person would have done in the same circumstances, regardless of the defendant’s personal attributes.

The Objective Standard of Care for Adults

The law judges adults by the same standard: that of a reasonable person in the defendant’s position. This is known as the objective standard of care. The roots of the test are often traced to classic definitions such as Blyth v Birmingham Waterworks, which emphasised negligence as the omission to do what a reasonable person would do, or doing what a prudent person would not do. Courts apply this standard across everyday and professional contexts.

The Reasonable Person Test

The reasonable person is a hypothetical individual who exercises ordinary prudence, foresight, and caution. The test asks: Would a reasonable person, in the defendant’s position, have acted differently?

Recognisable illustrations include references to the “man on the Clapham omnibus” and Glasgow Corporation v Muir, which emphasises that the reasonable person neither overreacts to remote risks nor ignores obvious ones. The test is applied against the actual circumstances faced at the time, not with hindsight.

Key Term: reasonable person
A notional person of average intelligence and experience, used as a benchmark for assessing conduct in negligence claims.

Other Factors in Assessing Breach

Although the standard itself is objective, whether it was met is determined by a structured assessment of the circumstances. Courts repeatedly evaluate the balance between risk and precautions. Common factors include:

• likelihood of harm: the higher the probability, the more care is expected (Bolton v Stone)
• seriousness of potential injury: greater gravity requires more precautions (Paris v Stepney Borough Council)
• cost and practicality of precautions: reasonable but proportionate measures suffice (Latimer v AEC Ltd)
• social utility/value: activities with significant social benefit may justify greater risk if precautions are otherwise reasonable (Watt v Hertfordshire; reinforced in part by Compensation Act 2006 and, to a limited extent, the Social Action, Responsibility and Heroism Act 2015)

State of knowledge at the time is critical. Conduct is judged by what was known or ought to have been known when the defendant acted (Roe v Minister of Health), preventing hindsight bias.

Inexperience Is No Defence

Adults cannot argue that their lack of experience or skill excuses careless conduct. The law expects adults to recognise their limitations and either avoid risky activities or take proper precautions. A learner driver is held to the same standard as a reasonably competent driver. This aligns with case law such as Nettleship v Weston: being a learner does not reduce the standard owed to other road users.

Equally, outside driving contexts, when an adult undertakes a task that carries risks, the standard is set by the nature of the activity, not the defendant’s personal novice status. If, for example, a person undertakes specialist DIY, the comparator may be the reasonably competent domestic handyman rather than a professional tradesperson—but personal inexperience does not lower even that domestic standard.

Worked Example 1.1

A learner driver causes a collision while taking their first lesson. Can they argue that their inexperience means they should not be liable for the accident?

Answer:
No. The learner driver is held to the standard of a reasonably competent driver. Inexperience does not lower the standard of care.

Application to Professionals

Professionals are judged by the standard of a reasonably competent member of their profession, not by their own level of experience. This is sometimes called the Bolam standard, subject to the Bolitho qualification that the professional opinion relied upon must be capable of withstanding logical analysis.

The comparator must be chosen carefully: the standard tracks the skill or role undertaken. A consultant surgeon is compared to reasonably competent consultants, whereas a general practitioner is compared to reasonably competent GPs. If a person undertakes a non-professional task (e.g., domestic DIY), they will be measured against the reasonably competent person performing that task, not necessarily a specialist.

In clinical contexts, risk disclosure to patients is treated differently after Montgomery v Lanarkshire Health Board: the duty to inform patients of material risks is patient-centred and not governed by Bolam. Materiality is assessed from the standpoint of a reasonable person in the patient’s position, and what the particular doctor knows or ought to know about the patient’s concerns.

Key Term: professional standard of care
The standard applied to a defendant who holds themselves out as having a particular skill or profession, measured against a competent member of that profession.

Key Term: Bolam test
A professional will not be negligent if acting in accordance with a responsible body of opinion within the relevant profession.

Key Term: Bolitho addendum
Professional opinion must be capable of logical analysis; courts may reject a body of opinion that cannot be justified on rational grounds.

Worked Example 1.2

A newly qualified doctor fails to diagnose a common illness that a competent doctor would have identified. Is the standard of care lower because the doctor is inexperienced?

Answer:
No. The newly qualified doctor is held to the standard of a reasonably competent doctor in that field. Inexperience is not a defence.

Worked Example 1.3

An adult novice uses a chainsaw to trim roadside branches and loses control, injuring a passerby. They argue they had never used a chainsaw before.

Answer:
The activity-based standard applies. By choosing to perform a hazardous task, the defendant must meet the standard of a reasonably competent person undertaking that task (including proper training and precautions). Inexperience does not lower the standard.

Exceptions to the Objective Standard

While the standard for adults is fixed, there are limited exceptions:

• Children: The standard is adjusted to what is reasonable for a child of similar age and experience (e.g., Mullin v Richards).
• Physical or Mental Impairment: In rare cases, the standard may be modified if the defendant is suddenly incapacitated by an unforeseen condition. Liability usually turns on knowledge or foreseeability of the impairment (contrast Roberts v Ramsbottom with Mansfield v Weetabix Ltd).
• Emergencies: The law may consider the pressure of an emergency when assessing reasonableness and social utility, but the standard remains objective. Care is still required to avoid unnecessary, disproportionate risks (Watt v Hertfordshire; Marshall v Osmond).

Key Term: exception to the objective standard
A situation where the law modifies the reasonable person test to account for age, sudden incapacity, or emergencies.

Worked Example 1.4

A 14-year-old causes injury while cycling carelessly. Is the standard of care the same as for an adult?

Answer:
No. The standard is that of a reasonable 14-year-old, not an adult.

Key Term: professional standard of care
The standard applied to a defendant who holds themselves out as having a particular skill or profession, measured against a competent member of that profession.

Sudden Illness and Incapacity

An adult defendant may avoid liability where a sudden, unforeseeable medical event renders them unable to control their actions. However, where there is any warning—or the defendant recognises they are unwell and continues regardless—liability is likely. Thus, a driver who suddenly and unforeseeably loses consciousness will be treated differently from one who experiences early warning signs but continues to drive.

Key Term: sudden incapacity
A rapid, unforeseeable medical event that leaves a defendant unable to control their actions; when truly without warning, it may negate breach.

Worked Example 1.5

A driver suffers an unexpected hypoglycaemic episode without prior warning and collides with a parked vehicle. Is breach likely?

Answer:
Not usually. If the episode was sudden and unforeseeable, and the driver had no warning signs, the standard may be modified and breach may not be established.

Emergencies and Social Utility

Emergency responders and members of the public acting in crisis scenarios are still judged objectively, but the court weighs the social value of their actions and the constraints they face. In Watt v Hertfordshire, transporting equipment urgently justified taking greater risks than in routine circumstances, provided those risks remained reasonable. The Compensation Act 2006 allows the court to consider whether imposing liability would discourage desirable activities. The Social Action, Responsibility and Heroism Act 2015 gives limited statutory recognition to social action and heroism, but courts continue to apply standard negligence principles.

Worked Example 1.6

A fire crew transports unsecured rescue equipment to save a trapped victim. During urgent transit, a firefighter is injured by shifting equipment. Is the employer likely liable?

Answer:
Not if the decision was a reasonable response to a genuine emergency and the social value outweighed the incremental risk. The court balances the urgency and utility of the response against practicable precautions.

Sports and Fast-Moving Activities

In fast-moving sports, participants are judged by the standard appropriate to the context. Mere errors of judgment in the heat of competition are not usually negligent; recklessness or “reckless disregard” can be (Wooldridge v Sumner). This does not lower the standard for adults; rather, it recognises the circumstances within which the reasonable person acts.

Worked Example 1.7

At a horse show, a competitor takes a sharp turn and loses control, striking a photographer. Negligence?

Answer:
Only if the rider’s conduct showed a reckless disregard for safety. Errors of judgment alone in dynamic sporting settings typically do not amount to breach.

The Objective Standard Applied: Practical Assessment

When analysing breach, articulate the objective standard clearly and then apply the established factors to the facts:

• identify the activity-based comparator (ordinary person, professional, domestic handyman)
• assess risk likelihood and gravity, the practicality and cost of precautions, and social utility
• judge conduct by the state of knowledge at the time, not with hindsight
• do not adjust the standard for adult inexperience
• isolate any genuine exceptions (children; sudden, unforeseeable incapacity; acute emergencies)

Key Term: state of knowledge
Conduct is judged by the scientific/technical and practical knowledge reasonably available at the time, not by later developments.

Worked Example 1.8

A hospital uses a storage method thought safe in the 1940s; at trial, later science shows micro-cracks allowed contamination. Does hindsight determine breach?

Answer:
No. Breach is assessed by the state of knowledge at the time of the incident, not by subsequent advances.

Policy Reasons for a Fixed Standard

The law maintains a fixed standard for adults to:

• ensure predictability and fairness in negligence claims
• protect the public by encouraging responsible behaviour
• prevent defendants from escaping liability by claiming ignorance or lack of skill
• support insurability and effective risk management: standards must be stable for loss allocation
• ensure confidence that the same protective standard applies irrespective of a defendant’s personal limitations

Exam Warning

A common mistake is to assume that inexperience or being a trainee reduces the standard of care. For SQE1, always apply the objective standard unless a clear exception applies. Distinguish professional treatment decisions (Bolam/Bolitho) from risk disclosure (Montgomery), and avoid hindsight when assessing breach.

Summary

The standard of care for adults in negligence is objective and does not change because of inexperience or lack of skill. Adults are judged by the reasonable person test. Established factors (likelihood of harm, seriousness, cost/practicality of precautions, social utility, and state of knowledge) guide the assessment. Only limited exceptions—such as for children, genuine sudden incapacity without warning, or acute emergencies—modify application, and even then the standard remains objective. Professionals are held to the standard of a competent member of their field, regardless of experience, with the Bolam test qualified by Bolitho and risk disclosure governed by Montgomery.

Key Point Checklist

This article has covered the following key knowledge points:

• The standard of care for adults in negligence is objective and fixed.
• Inexperience or lack of training does not lower the standard for adults.
• The reasonable person test is used to assess breach of duty.
• Courts weigh likelihood of harm, seriousness of injury, cost/practicality of precautions, social utility, and the state of knowledge at the time.
• Professionals are judged by the standard of a competent member of their field (Bolam), subject to rational justification (Bolitho), and patient-centred risk disclosure (Montgomery).
• Exceptions apply only for children, sudden incapacity without warning, or emergencies; the assessment remains objective.
• The comparator depends on the activity undertaken (e.g., domestic handyman vs specialist), not the defendant’s personal inexperience.

Key Terms and Concepts

• objective standard of care
• reasonable person
• exception to the objective standard
• professional standard of care
• Bolam test
• Bolitho addendum
• sudden incapacity
• state of knowledge