Negligence: Breach of Duty
In Negligence, in order to establish a successful claim, we first have to show that the
defendant owed the plaintiff a duty of care.
After showing that the duty of care exists, is that that duty was breached.
I owe you a duty to take reasonable care. If I didn’t take reasonable care, then I have
‘breached’ that duty.
As H&R say ‘breach occurs where the defendant falls below the particular standard of
care demanded by the law’ – Standard of care (behaviour of the reasonable person)
Know if something has been broken
Ask whether it was good enough or not good enough? Did it meet the standard or not
meet the standard?
The standard of care brings a concept to the fore that underpins a lot of negligence law. That
concept in dated terms was that of the ‘reasonable man’
Older negligence law is based around the concept of what would a reasonable man
do?
THE REASONABLE PERSON TEST
The test is as follows: ‘What would the reasonable person have done in the
Defendant's circumstances?’
- If the defendant's actions fell below what the reasonable person would have done in
the circumstances, then his actions would have breached the duty of care
So how do you establish that? (F.Y.I burden of proof is on the claimant)
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 784: consolidates this
, ‘Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would
do, or not doing something which a prudent and reasonable man would do…’
So, we compare the defendant’s behaviour to what a ‘reasonable man’ would do. Now we
say, ‘reasonable person’. This is the test for breach that you would state in an exam answer.
In a sense we are asking ‘what should the defendant have done’?
How do you work out what a ‘reasonable man’ would do? Who is this reasonable person?
Described by courts in various ways over the years, including as ‘the man on the Clapham
omnibus’ (Hall vs Brooklands Auto-Racing Club), ‘the sensible, ordinary, good and
hardworking person’
Description of the reasonable man: Glasgow Corporation v Muir [1943]
Where Lord MacMillan said:
“The standard of foresight of the reasonable man is in one sense an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular
person whose conduct is in question. Some persons are by nature unduly timorous and
imagine every path beset with lions; others, of more robust temperament, fail to foresee or
nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to
be free both from over-apprehension and from over-confidence.”
A reasonable person is not overly careful and timorous or an idiot who pays no
attention to danger (overly brave). They are somewhere in the middle. [Goldilocks’s
test]
First and most important thing this is an objective test. Distinct from a subjective test.
Nettleship v Weston [1971] makes this really clear.
Purview: In this case the defendant was a learner driver who hit a lamp post and broke
the claimant’s kneecap (her driving instructor)- L.D said that they “I was taking so
much care. I was driving the best I possibly could”.
You can’t say you ‘did your best’ if YOUR best just isn’t good enough.
Court held: It doesn’t matter. Your best isn’t the test. The test is for all drivers, regardless of
how long they have been driving- 6 months or 60 years, it is the standard of the experienced,
skilled and careful driver.
Narrow in the idea that is it objective.
NOTE: Situation is fact specific but imaginary reasonable person is objective, it is a concept
and has no relationship to person in situation.
Sidenote – children, court will look at what the ‘reasonable child of that age’ should have
done. The reasonable person - (adult).
__________________________________________________________________________
In Negligence, in order to establish a successful claim, we first have to show that the
defendant owed the plaintiff a duty of care.
After showing that the duty of care exists, is that that duty was breached.
I owe you a duty to take reasonable care. If I didn’t take reasonable care, then I have
‘breached’ that duty.
As H&R say ‘breach occurs where the defendant falls below the particular standard of
care demanded by the law’ – Standard of care (behaviour of the reasonable person)
Know if something has been broken
Ask whether it was good enough or not good enough? Did it meet the standard or not
meet the standard?
The standard of care brings a concept to the fore that underpins a lot of negligence law. That
concept in dated terms was that of the ‘reasonable man’
Older negligence law is based around the concept of what would a reasonable man
do?
THE REASONABLE PERSON TEST
The test is as follows: ‘What would the reasonable person have done in the
Defendant's circumstances?’
- If the defendant's actions fell below what the reasonable person would have done in
the circumstances, then his actions would have breached the duty of care
So how do you establish that? (F.Y.I burden of proof is on the claimant)
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 784: consolidates this
, ‘Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would
do, or not doing something which a prudent and reasonable man would do…’
So, we compare the defendant’s behaviour to what a ‘reasonable man’ would do. Now we
say, ‘reasonable person’. This is the test for breach that you would state in an exam answer.
In a sense we are asking ‘what should the defendant have done’?
How do you work out what a ‘reasonable man’ would do? Who is this reasonable person?
Described by courts in various ways over the years, including as ‘the man on the Clapham
omnibus’ (Hall vs Brooklands Auto-Racing Club), ‘the sensible, ordinary, good and
hardworking person’
Description of the reasonable man: Glasgow Corporation v Muir [1943]
Where Lord MacMillan said:
“The standard of foresight of the reasonable man is in one sense an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular
person whose conduct is in question. Some persons are by nature unduly timorous and
imagine every path beset with lions; others, of more robust temperament, fail to foresee or
nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to
be free both from over-apprehension and from over-confidence.”
A reasonable person is not overly careful and timorous or an idiot who pays no
attention to danger (overly brave). They are somewhere in the middle. [Goldilocks’s
test]
First and most important thing this is an objective test. Distinct from a subjective test.
Nettleship v Weston [1971] makes this really clear.
Purview: In this case the defendant was a learner driver who hit a lamp post and broke
the claimant’s kneecap (her driving instructor)- L.D said that they “I was taking so
much care. I was driving the best I possibly could”.
You can’t say you ‘did your best’ if YOUR best just isn’t good enough.
Court held: It doesn’t matter. Your best isn’t the test. The test is for all drivers, regardless of
how long they have been driving- 6 months or 60 years, it is the standard of the experienced,
skilled and careful driver.
Narrow in the idea that is it objective.
NOTE: Situation is fact specific but imaginary reasonable person is objective, it is a concept
and has no relationship to person in situation.
Sidenote – children, court will look at what the ‘reasonable child of that age’ should have
done. The reasonable person - (adult).
__________________________________________________________________________
