Breach of Duty
There are two stages in determining if there has been a breach of duty.
First, the standard of care to be expected of the defendant must be established. This is a question of
law.
Then all the facts and circumstances must be examined to see if the defendant has fallen below that
standard, ie breached the duty. This is a question of fact.
Standard of Care – the General Rule
The defendant must behave as a reasonable person would in the circumstances.
A person does not have to do everything possible to prevent harm. They just have to reach the standard
of what a reasonable person would do.
The standard is set by the act, not the actor – e.g., learner driver judged against a reasonable driver
e.g., 2 junior doctor held to the same standard as a doctor – the standard of care expected is set by the
act, it does not consider individual experience
n.b. in professional sports a higher standard of care can be expected than in sunday league – here there
is a different set of circumstances so standard of care is different
The Professional Standard
A different standard is expected of professionals
Higher standard - based on what the reasonable professional in that field would have done, rather than
what the reasonable person would have done.
e.g., standard of a reasonable competent solicitor – higher than a lay man but doesn’t mean they have
to know e/t
Children
The standard required will be that of the reasonable child of the defendant’s age carrying out that act.
e.g., schoolboy flick rubber in eye of classmate – would a reasonable and careful 15-year-old have
foreseen the risk of injury
On the facts, the schoolgirls could not reasonably have foreseen the risk of the injury (the practice was
common and not banned in the school). The defendant had not fallen below the standard of a
reasonably competent 15-year-old.
Illness and disability
On occasion the courts do modify the standard to take into account certain characteristics of some
defendants.
This occurs where the defendant is suffering from an illness that he was reasonably unaware of.
The defendant unknowingly suffered a stroke before he drove into town. He was aware that his
consciousness had been impaired. He hit someone
The defendant was negligent; he was judged against the standard of the reasonable competent driver.
He should have stopped the car as soon as he realised that his driving was being affected. The defendant
could only escape liability if the incapability amounted to a total loss of consciousness or control.
W/a - lorry driver suffered an attack and crashed
,No evidence to suggest that at any point prior to the crash, the driver knew that his ability to drive was
impaired.
So the standard of care was adjusted. The defendant was judged against the standard of a reasonably
competent driver who is unaware that he is suffering a condition that impairs his ability to drive.
The driver was thus found not liable.
Establishing breach of duty
There are two stages in determining whether there has been a breach of duty.
Once the standard of care to be expected of the defendant has been established as a question of
law, all the facts and circumstances must be examined to see if the defendant has fallen below
that standard, ie breached the duty.
This is a question of fact - requires the court to consider all the circumstances of the case.
There are recurring principles which are useful in determining if the defendant is at fault.
Factors relevant to breach
- Likelihood of harm
The more likely someone is to get injured, the more likely it is that there will be a breach.
Bolton v Stone - The claimant was injured by a cricket ball, hit out of the cricket ground. This
had happened six times in the previous 30 years and the ground had a 7ft high fence around it.
The chance of this happening was therefore so slight that there was no breach; the reasonable
person would not have guarded against such a small risk. A reasonable person does not take
precautions against every risk, only those reasonably likely to happen.
Haley v London Electricity Board - The blind claimant fell down a hole in the pavement dug by
the defendant. The defendant had taken precautions to protect sighted but not blind persons.
The risk of causing injury to blind people was not so small that it should be ignored. The
defendant must tailor their conduct considering the characteristics of people who they know
might be affected by their actions.
- Magnitude of harm (seriousness of injury)
If any injury that may occur would be serious, greater care will be needed than if the risk was of
a more minor injury.
Paris v Stepney Borough Council - The claimant had only one good eye, a fact known to his
employers, the defendants. Despite this, no protective goggles were provided, and he became
blind when a piece of metal went into his good eye.
The defendant was liable. Although the risk of injury was small, the consequences of the injury
were significant (loss of sight). They should have taken greater care to ensure he wore protective
goggles.
,Watson v British Boxing - The body regulating professional boxing breached its duty towards a
boxer by failing to provide suitable ringside resuscitation equipment and doctors, in part because
the potential harm was serious brain damage.
- Practicality of precautions
Ascertain how easily the risk could have been avoided and to balance the cost and practicality of
these precautions against the severity of the risk.
To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to
require them to take the necessary precautions, even against a clearly foreseeable risk, the court
will accordingly not impose liability.
Latimer v AEC Ltd - The defendant’s factory floor became slippery following a flood and the
claimant slipped on it. The defendant had taken some precautions (laid down 3 tonnes of
sawdust), but the only way to guarantee safety would have been to cease operating the factory, or
to employ many more people to mop up spills.
These precautions were not justified given the small risk of injury to the claimant.
- Benefit of the defendant’s conduct
If the defendant has taken a risk with the aim of preserving or protecting life, limb or property,
then this may be justified.
Watt v Hertfordshire County Council - A fireman was injured in a fire engine on the way to
answer an emergency call (a woman was trapped under a lorry). The lifting equipment required
to deal with the emergency had not been properly secured in transit. It was held that there was no
breach by the firemen’s employer, as the risk of injury was small, and the ultimate aim of saving
life justified taking the risk.
Where life is at stake, abnormal risks may be justified.
This is not a blanket exemption for the emergency services - a fire authority was held to be liable
for damage caused by going through a red light on the way to a fire
- Common practice
If a defendant can show they have acted in accordance with a practice usually followed by others
in that field the defendant may escape liability.
However, the court can always rule that the common practice is itself negligent
Re Herald of Free Enterprise - the common practice of sailing a ‘roll-on roll-off ferry’ with the
bow doors open was illogical and therefore declared negligent.
The less expertise / specialist knowledge involved in a particular area, the less weight the court
will give to ‘common practice’ as a consideration compared to the likelihood of harm, magnitude
of harm, practicality of precautions and benefits from the defendant’s conduct.
- ’State of the art’
, The courts must assess the defendant’s actions against the knowledge in the profession/accepted
practice at the time of the alleged breach.
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be
regarded as negligence.
Roe v Minister of Health - The claimants suffered paralysis from the waist down having been
injected with an anaesthetic. The anaesthetic was stored in glass ampoules which were kept in a
phenol solution to keep them dislueected. Unknown to anyone, invisible cracks in the ampoules,
allowed the phenol to contaminate the anaesthetic. At the time of the operation (1947) the staff
could not be expected to know of this danger. The test to be applied was what a responsible body
of medical opinion would know at the time of the operation and not at the time of the court
hearing
- Sport
When the defendant is participating in sport, the demands of the game will be foremost in their
mind and they are likely to take risks in the heat of the moment.
Wooldridge v Sumner - nothing short of reckless disregard for the claimant’s safety would
constitute a breach.
Watson v Gray - There would be a breach of duty if the reasonable participant (of the
defendant’s level) knew that there was a significant risk that what they did could result in serious
injury.
- A balancing exercise
All relevant factors need to be balanced to determine if there has been a breach
The burden is on the claimant to prove that the defendant breached the duty of care - on
the balance of probabilities
The obligation is on the claimant to collect evidence that will show that it is more likely than not
that the defendant breached their duty.
Section 11 of the Civil Evidence Act 1968
If the incident that caused the claimant’s injury led to a criminal prosecution being brought
against the defendant, then the claimant may be helped by relying on any conviction that results
if the conviction is evidence of careless conduct eg dangerous driving.
In a small number of cases, the claimant may also be assisted by the maxim res ipsa
loquitur (‘the facts speak for themselves’).
Used where the only plausible explanation for the claimant’s injuries is negligence by the
defendant.
If the maxim applies it will then be for the defendant to adduce evidence that shows that they
were not negligent.
There are two stages in determining if there has been a breach of duty.
First, the standard of care to be expected of the defendant must be established. This is a question of
law.
Then all the facts and circumstances must be examined to see if the defendant has fallen below that
standard, ie breached the duty. This is a question of fact.
Standard of Care – the General Rule
The defendant must behave as a reasonable person would in the circumstances.
A person does not have to do everything possible to prevent harm. They just have to reach the standard
of what a reasonable person would do.
The standard is set by the act, not the actor – e.g., learner driver judged against a reasonable driver
e.g., 2 junior doctor held to the same standard as a doctor – the standard of care expected is set by the
act, it does not consider individual experience
n.b. in professional sports a higher standard of care can be expected than in sunday league – here there
is a different set of circumstances so standard of care is different
The Professional Standard
A different standard is expected of professionals
Higher standard - based on what the reasonable professional in that field would have done, rather than
what the reasonable person would have done.
e.g., standard of a reasonable competent solicitor – higher than a lay man but doesn’t mean they have
to know e/t
Children
The standard required will be that of the reasonable child of the defendant’s age carrying out that act.
e.g., schoolboy flick rubber in eye of classmate – would a reasonable and careful 15-year-old have
foreseen the risk of injury
On the facts, the schoolgirls could not reasonably have foreseen the risk of the injury (the practice was
common and not banned in the school). The defendant had not fallen below the standard of a
reasonably competent 15-year-old.
Illness and disability
On occasion the courts do modify the standard to take into account certain characteristics of some
defendants.
This occurs where the defendant is suffering from an illness that he was reasonably unaware of.
The defendant unknowingly suffered a stroke before he drove into town. He was aware that his
consciousness had been impaired. He hit someone
The defendant was negligent; he was judged against the standard of the reasonable competent driver.
He should have stopped the car as soon as he realised that his driving was being affected. The defendant
could only escape liability if the incapability amounted to a total loss of consciousness or control.
W/a - lorry driver suffered an attack and crashed
,No evidence to suggest that at any point prior to the crash, the driver knew that his ability to drive was
impaired.
So the standard of care was adjusted. The defendant was judged against the standard of a reasonably
competent driver who is unaware that he is suffering a condition that impairs his ability to drive.
The driver was thus found not liable.
Establishing breach of duty
There are two stages in determining whether there has been a breach of duty.
Once the standard of care to be expected of the defendant has been established as a question of
law, all the facts and circumstances must be examined to see if the defendant has fallen below
that standard, ie breached the duty.
This is a question of fact - requires the court to consider all the circumstances of the case.
There are recurring principles which are useful in determining if the defendant is at fault.
Factors relevant to breach
- Likelihood of harm
The more likely someone is to get injured, the more likely it is that there will be a breach.
Bolton v Stone - The claimant was injured by a cricket ball, hit out of the cricket ground. This
had happened six times in the previous 30 years and the ground had a 7ft high fence around it.
The chance of this happening was therefore so slight that there was no breach; the reasonable
person would not have guarded against such a small risk. A reasonable person does not take
precautions against every risk, only those reasonably likely to happen.
Haley v London Electricity Board - The blind claimant fell down a hole in the pavement dug by
the defendant. The defendant had taken precautions to protect sighted but not blind persons.
The risk of causing injury to blind people was not so small that it should be ignored. The
defendant must tailor their conduct considering the characteristics of people who they know
might be affected by their actions.
- Magnitude of harm (seriousness of injury)
If any injury that may occur would be serious, greater care will be needed than if the risk was of
a more minor injury.
Paris v Stepney Borough Council - The claimant had only one good eye, a fact known to his
employers, the defendants. Despite this, no protective goggles were provided, and he became
blind when a piece of metal went into his good eye.
The defendant was liable. Although the risk of injury was small, the consequences of the injury
were significant (loss of sight). They should have taken greater care to ensure he wore protective
goggles.
,Watson v British Boxing - The body regulating professional boxing breached its duty towards a
boxer by failing to provide suitable ringside resuscitation equipment and doctors, in part because
the potential harm was serious brain damage.
- Practicality of precautions
Ascertain how easily the risk could have been avoided and to balance the cost and practicality of
these precautions against the severity of the risk.
To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to
require them to take the necessary precautions, even against a clearly foreseeable risk, the court
will accordingly not impose liability.
Latimer v AEC Ltd - The defendant’s factory floor became slippery following a flood and the
claimant slipped on it. The defendant had taken some precautions (laid down 3 tonnes of
sawdust), but the only way to guarantee safety would have been to cease operating the factory, or
to employ many more people to mop up spills.
These precautions were not justified given the small risk of injury to the claimant.
- Benefit of the defendant’s conduct
If the defendant has taken a risk with the aim of preserving or protecting life, limb or property,
then this may be justified.
Watt v Hertfordshire County Council - A fireman was injured in a fire engine on the way to
answer an emergency call (a woman was trapped under a lorry). The lifting equipment required
to deal with the emergency had not been properly secured in transit. It was held that there was no
breach by the firemen’s employer, as the risk of injury was small, and the ultimate aim of saving
life justified taking the risk.
Where life is at stake, abnormal risks may be justified.
This is not a blanket exemption for the emergency services - a fire authority was held to be liable
for damage caused by going through a red light on the way to a fire
- Common practice
If a defendant can show they have acted in accordance with a practice usually followed by others
in that field the defendant may escape liability.
However, the court can always rule that the common practice is itself negligent
Re Herald of Free Enterprise - the common practice of sailing a ‘roll-on roll-off ferry’ with the
bow doors open was illogical and therefore declared negligent.
The less expertise / specialist knowledge involved in a particular area, the less weight the court
will give to ‘common practice’ as a consideration compared to the likelihood of harm, magnitude
of harm, practicality of precautions and benefits from the defendant’s conduct.
- ’State of the art’
, The courts must assess the defendant’s actions against the knowledge in the profession/accepted
practice at the time of the alleged breach.
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be
regarded as negligence.
Roe v Minister of Health - The claimants suffered paralysis from the waist down having been
injected with an anaesthetic. The anaesthetic was stored in glass ampoules which were kept in a
phenol solution to keep them dislueected. Unknown to anyone, invisible cracks in the ampoules,
allowed the phenol to contaminate the anaesthetic. At the time of the operation (1947) the staff
could not be expected to know of this danger. The test to be applied was what a responsible body
of medical opinion would know at the time of the operation and not at the time of the court
hearing
- Sport
When the defendant is participating in sport, the demands of the game will be foremost in their
mind and they are likely to take risks in the heat of the moment.
Wooldridge v Sumner - nothing short of reckless disregard for the claimant’s safety would
constitute a breach.
Watson v Gray - There would be a breach of duty if the reasonable participant (of the
defendant’s level) knew that there was a significant risk that what they did could result in serious
injury.
- A balancing exercise
All relevant factors need to be balanced to determine if there has been a breach
The burden is on the claimant to prove that the defendant breached the duty of care - on
the balance of probabilities
The obligation is on the claimant to collect evidence that will show that it is more likely than not
that the defendant breached their duty.
Section 11 of the Civil Evidence Act 1968
If the incident that caused the claimant’s injury led to a criminal prosecution being brought
against the defendant, then the claimant may be helped by relying on any conviction that results
if the conviction is evidence of careless conduct eg dangerous driving.
In a small number of cases, the claimant may also be assisted by the maxim res ipsa
loquitur (‘the facts speak for themselves’).
Used where the only plausible explanation for the claimant’s injuries is negligence by the
defendant.
If the maxim applies it will then be for the defendant to adduce evidence that shows that they
were not negligent.
