Learning Outcomes
This article examines the second element required to establish negligence: breach of duty. It explains how the standard of care is determined objectively and how this standard is modified for specific defendants like professionals and children. It also outlines the factors courts consider when assessing if a breach has occurred and the principles for proving breach. After reading this article, you should be able to identify and apply the relevant legal rules concerning the standard of care to SQE1-style single best answer questions.
SQE1 Syllabus
For SQE1, you are required to understand the principles governing breach of duty in negligence, including the standard of care expected in different circumstances. You should be prepared to apply these principles to factual scenarios to determine if a breach has occurred.
As you work through this article, remember to pay particular attention in your revision to:
- the objective test for the standard of care (the 'reasonable person')
- how the standard of care is adjusted for professionals (including the Bolam test and its modifications)
- the standard of care expected of children and unskilled individuals
- factors influencing the court's assessment of breach, such as the likelihood and severity of harm, the cost of precautions, and the social utility of the defendant's actions
- the principles relating to proving breach, including res ipsa loquitur.
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 test used by courts to determine the standard of care in negligence?
- The subjective test based on the defendant's own abilities.
- The objective test based on the 'reasonable person'.
- The test based on the common practice within a specific industry.
- The test based on the severity of the harm caused.
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According to the Bolam test, when is a medical professional not considered negligent in relation to diagnosis or treatment?
- When they act with the best intentions.
- When their actions are supported by any body of medical opinion.
- When they act in accordance with a practice accepted as proper by a responsible body of medical opinion, provided that opinion has a logical basis.
- When the patient consented to the risk.
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True or False? A learner driver is expected to meet the same standard of care as a reasonably competent qualified driver.
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Which of the following factors is LEAST likely to lower the standard of care expected of a defendant?
- The high cost of taking precautions against a very small risk.
- The defendant acting in an emergency situation.
- The defendant possessing a lower level of skill than average for the activity undertaken.
- The social utility of the defendant's actions.
Introduction
Once it has been established that the defendant owed the claimant a duty of care (the first element of negligence), the next step is to determine whether the defendant breached that duty. A breach occurs when the defendant's conduct falls below the standard of care required by law. Establishing breach is essential, as negligence liability cannot arise without it. This article explores how the standard of care is set and assessed.
The Standard of Care: The Reasonable Person Test
The law requires everyone to behave with a certain level of care to avoid causing foreseeable harm to others. The benchmark used to assess a defendant's conduct is objective: the standard of the 'reasonable person'.
Key Term: Standard of care The level of care expected by law from a person in particular circumstances to protect others from foreseeable risks of harm. Failure to meet this standard constitutes a breach of duty.
The reasonable person is a hypothetical individual placed in the defendant's circumstances. This test focuses on what a person of ordinary prudence, possessing average skill and knowledge, would have done.
Key Term: Reasonable Person A hypothetical person used as a legal standard to determine whether conduct was negligent. This person exercises average care, skill, and judgment in conduct that society requires of its members for the protection of their own and of others' interests.
The test is impersonal; the defendant's personal characteristics, such as being inexperienced, clumsy, or having lower intelligence, are generally not taken into account. If a defendant engages in an activity requiring a certain level of competence (like driving), they must meet the standard of a reasonably competent person performing that activity.
Special Standards of Care
While the 'reasonable person' test is the general rule, the standard of care is adjusted for certain categories of defendants.
Skilled or Professional Defendants
Individuals holding themselves out as having a particular skill or profession (e.g., doctors, solicitors, accountants, engineers) are judged by the standard of the reasonably competent professional in that field, not by the standard of the ordinary reasonable person.
The Bolam test, established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, is the starting point for professionals, particularly in the medical context regarding treatment and diagnosis.
Key Term: Bolam Test A principle stating that a professional (especially medical) is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professional opinion skilled in that particular art.
This means that if a doctor's conduct is supported by a responsible body of medical opinion, even if another body disagrees, they may not be found negligent. However, the courts later clarified in Bolitho v City and Hackney Health Authority [1998] AC 232 that the professional opinion relied upon must be capable of withstanding logical analysis. The court can reject an opinion if it deems it illogical or unreasonable.
A different standard applies regarding the duty to warn patients about risks associated with treatment. Following Montgomery v Lanarkshire Health Board [2015] UKSC 11, doctors have a duty to take reasonable care to ensure patients are aware of any material risks involved in any recommended treatment, and of any reasonable alternative treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor knows (or should reasonably know) that the particular patient would be likely to attach significance to it. This focuses on the patient's viewpoint rather than just professional opinion.
Worked Example 1.1
Dr. Aris performs surgery on Ben using Technique A. There is a responsible body of surgical opinion supporting Technique A, although another responsible body prefers Technique B, which carries slightly fewer risks. Ben suffers a complication that is a known risk of Technique A. Is Dr. Aris likely to be in breach of duty regarding the choice of technique?
Answer: Unlikely. Applying the Bolam test as modified by Bolitho, Dr. Aris acted in accordance with a practice accepted by a responsible body of medical opinion (supporting Technique A). Provided this opinion has a logical basis, Dr. Aris would likely not be found negligent regarding the choice of technique, even if another body of opinion favoured Technique B. (Note: Dr. Aris would still need to comply with the Montgomery standard regarding warning Ben of material risks).
Unskilled Defendants (Learners)
Individuals learning a skill (e.g., learner drivers) are generally held to the same standard as a reasonably competent, qualified person performing that skill. Inexperience is not an excuse for falling below the required standard. This principle, established in cases like Nettleship v Weston [1971] 2 QB 691 regarding a learner driver, is based partly on the need to protect the public and the availability of compulsory insurance.
Children
The standard of care expected of a child defendant is that of a reasonable child of the same age. The court considers what level of care and foresight can reasonably be expected from an ordinary child of that specific age, rather than applying the adult 'reasonable person' standard. Very young children are unlikely to be found negligent as they lack the capacity to foresee the consequences of their actions.
Worked Example 1.2
Two 14-year-old friends, Chloe and David, are playing with frisbees in a park. Chloe throws her frisbee carelessly, hitting David and causing a minor injury. Would Chloe be judged against the standard of a reasonable adult or a reasonable 14-year-old?
Answer: Chloe's conduct would be judged against the standard of a reasonable 14-year-old. The court would consider whether an ordinary, prudent 14-year-old would have foreseen the risk of injury and acted as Chloe did.
Assessing Breach: Relevant Factors
Once the appropriate standard of care is established, the court must determine whether the defendant's conduct fell below that standard. This involves a factual assessment, often described as a balancing exercise, weighing the risk against the defendant's actions.
Key Term: Breach of duty Occurs when a defendant's conduct falls below the legally required standard of care owed to the claimant.
Key factors the court considers include:
- Magnitude of the risk: This involves considering both the likelihood of harm occurring and the potential severity of that harm.
- Likelihood: If the risk of harm was very small, a reasonable person might be justified in disregarding it (Bolton v Stone [1951] AC 850). However, even a small risk may require precautions if the potential harm is severe.
- Severity: If the defendant knows the claimant is particularly vulnerable to serious injury (e.g., a one-eyed worker, as in Paris v Stepney Borough Council [1951] AC 367), a higher degree of care may be required even if the likelihood of injury is low.
- Cost and practicability of precautions: The court balances the risk against the measures needed to eliminate it. If the risk can be significantly reduced at low cost and effort, failure to take precautions is more likely to be a breach. Conversely, if precautions are disproportionately expensive or impractical relative to a small risk, failure to take them may be reasonable (Latimer v AEC Ltd [1953] AC 643).
- Social utility of the defendant's actions: The purpose or value of the defendant's activity to society is relevant. If the defendant was acting in an emergency or performing a socially valuable function (e.g., emergency services), the court may find it reasonable to take greater risks than in other circumstances (Watt v Hertfordshire County Council [1954] 1 WLR 835). The Compensation Act 2006 also allows courts to consider whether imposing liability might deter desirable activities.
- Common practice: Compliance with common practice within a trade or profession can be strong evidence that the defendant was not negligent. However, it is not conclusive; a court can find a common practice itself to be negligent if it ignores obvious risks.
- State of knowledge: The defendant's conduct is judged based on the knowledge reasonably available at the time of the alleged breach, not with hindsight. A defendant is not expected to guard against risks that were scientifically unknown or unforeseeable at the time (Roe v Minister of Health [1954] 2 QB 66).
Worked Example 1.3
A cricket club has a ground next to a residential road. Balls are occasionally hit out of the ground, roughly six times in 30 years, without causing injury. One day, a ball is hit out and injures Yasmin, who is walking past. Building a significantly higher fence would prevent this but would be very expensive. Is the club likely to be in breach of duty?
Answer: Unlikely. Applying the principles from Bolton v Stone, the likelihood of harm occurring was very low (six times in 30 years). Balancing this small risk against the high cost of effective precautions (a much higher fence) and the social utility of playing cricket, a reasonable cricket club might justifiably disregard the risk. Therefore, the club may not have breached its duty of care.
Exam Warning
Assessing breach often involves balancing competing factors. SQE questions may present scenarios where, for example, the risk of harm is significant but the cost of precautions is extremely high, or where the defendant's actions had high social utility but were still risky. Ensure you identify all relevant factors presented in the scenario and weigh them appropriately to reach a justified conclusion on whether the standard of care was met.
Proving Breach of Duty
The burden of proving breach of duty rests on the claimant, who must establish on the balance of probabilities that the defendant's conduct fell below the required standard of care.
Res Ipsa Loquitur
In some situations, the facts of the accident itself may raise an inference of negligence, even without direct evidence of the defendant's specific failure. The principle of res ipsa loquitur ('the thing speaks for itself') may apply if three conditions are met:
- The cause of the accident is unknown.
- The thing causing the damage was under the defendant's control.
- The accident is of a type that would not normally occur without negligence.
Key Term: Res ipsa loquitur A legal principle ('the thing speaks for itself') allowing negligence to be inferred from the mere fact an accident happened, provided the cause was under the defendant's control and the accident was of a kind that does not usually occur without negligence.
If these conditions are met, a prima facie case of negligence is raised, and the burden shifts to the defendant to provide a plausible explanation of how the accident could have occurred without their negligence. If they fail to do so, the court may find breach based on the inference.
Criminal Convictions
Under the Civil Evidence Act 1968, s 11, if a defendant has been convicted of a criminal offence arising from the same incident, that conviction can be used as evidence in civil proceedings to prove that they committed the offence. If the criminal offence involved careless conduct (e.g., careless driving), the conviction provides prima facie evidence of breach of duty in negligence, shifting the burden to the defendant to prove they were not negligent.
Key Point Checklist
This article has covered the following key knowledge points:
- Breach of duty is the second element of negligence, requiring the defendant's conduct to fall below the legally required standard of care.
- The general standard of care is objective – that of the 'reasonable person' in the circumstances.
- Special standards apply to professionals (based on the standard of a reasonably competent professional in that field, considering Bolam and Bolitho) and children (based on a reasonable child of the same age). Learners are typically held to the standard of a competent person.
- Assessing breach involves balancing the magnitude of risk (likelihood and severity) against the cost and practicality of precautions and the social utility of the defendant's actions.
- The state of knowledge at the time of the alleged breach is relevant; defendants are not judged with hindsight.
- The claimant bears the burden of proving breach on the balance of probabilities.
- Res ipsa loquitur may assist the claimant where the cause of the accident is unknown, under the defendant's control, and negligence is the most likely explanation.
- A relevant criminal conviction can be used as evidence of breach in civil proceedings.
Key Terms and Concepts
- Standard of care
- Reasonable Person
- Bolam Test
- Breach of duty
- Res ipsa loquitur
