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Once the claimant has established that the defendant owed a duty of care, the next element to prove is breach of duty. The defendant will be in breach of their duty of care if they fail to meet the standard of care expected of them in the circumstances. This lesson examines the reasonable person test, the factors courts consider when determining whether the defendant's conduct fell below the required standard, and special standards of care for professionals and other specific categories of defendant.
The standard of care in negligence is the standard of the reasonable person — sometimes described as "the man on the Clapham omnibus." The court asks: would a reasonable person in the defendant's position have acted as the defendant did?
If the defendant's conduct falls below the standard of the reasonable person, the defendant is in breach of duty. If the defendant acted as a reasonable person would have acted, there is no breach.
The classic definition was provided by Baron Alderson in Blyth v Birmingham Waterworks Co [1856]:
"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 doing something which a prudent and reasonable man would not do."
Key Definition: Breach of duty occurs when the defendant falls below the standard of care that a reasonable person would have met in the same circumstances.
The reasonable person test is an objective test. This means the court does not ask whether the particular defendant did their best or acted in good faith — it asks whether a reasonable person in the defendant's situation would have acted differently.
This has important consequences:
An inexperienced defendant is judged by the same standard as an experienced person in that role: Nettleship v Weston [1971] — A learner driver was held to the same standard as any other qualified driver. The claimant (the driving instructor) was owed the same standard of care regardless of the defendant's inexperience.
A professional is judged by the standard of a reasonably competent professional in that field (the Bolam test — see below), not by the standard of the leading expert.
| Principle | Case | Ruling |
|---|---|---|
| Inexperience is no defence | Nettleship v Weston [1971] | A learner driver is held to the standard of the reasonably competent driver |
| Children are judged by their age | Mullin v Richards [1998] | A 15-year-old is judged by the standard of a reasonable 15-year-old |
| Professionals are judged by their profession | Bolam v Friern Hospital [1957] | A doctor is judged by the standard of a reasonably competent doctor |
Exam Tip: In problem questions, always identify the standard of care that applies to the specific defendant. If the defendant is a professional, apply the Bolam test. If the defendant is a child, apply the standard of a reasonable child of that age.
The court does not simply apply the reasonable person test in the abstract. It considers a range of factors to determine whether the defendant's conduct fell below the required standard. These are sometimes called the risk factors or breach factors.
The greater the likelihood that harm will result from the defendant's conduct, the more precautions the reasonable person would be expected to take.
Bolton v Stone [1951]
| Aspect | Detail |
|---|---|
| Facts | Miss Stone was hit by a cricket ball that was struck out of a cricket ground. The ball had to clear a 17-foot fence and travel approximately 100 yards to reach the claimant. Evidence showed that balls had been hit out of the ground only about six times in 30 years. |
| Decision | The House of Lords held that the cricket club was not in breach of duty. The risk of injury was so small that a reasonable person would not have taken further precautions. |
| Principle | Where the likelihood of harm is very low, the defendant is not expected to guard against it. |
Compare with Haley v London Electricity Board [1965], where the defendants dug a trench in a pavement and placed barriers around it. A blind man, Mr Haley, fell into the trench because the barriers were inadequate for someone who could not see them. The House of Lords held the defendants were in breach — it was foreseeable that blind people would walk along the pavement, and the risk of harm to them was significant.
The more serious the potential harm, the greater the precautions the reasonable person would be expected to take, even if the likelihood of harm is relatively low.
Paris v Stepney Borough Council [1951]
| Aspect | Detail |
|---|---|
| Facts | Mr Paris was employed by the council as a mechanic. He was blind in one eye. While working, a chip of metal flew into his good eye, blinding him completely. The employer had not provided safety goggles — it was not standard practice for workers doing this type of work at the time. |
| Decision | The House of Lords held the employer was in breach of duty. Although the risk of a chip of metal hitting an eye was relatively small, the severity of the consequences for Mr Paris (who would be left totally blind) was so great that the reasonable employer would have taken the precaution of providing goggles. |
| Principle | The severity of potential harm increases the standard of care. Where the consequences of harm are likely to be particularly serious, greater precautions must be taken. |
The court considers whether it was practical and reasonable for the defendant to take precautions to prevent the harm. If the cost or difficulty of prevention is disproportionate to the risk, the defendant may not be in breach for failing to take those precautions.
Latimer v AEC Ltd [1953]
| Aspect | Detail |
|---|---|
| Facts | A factory floor became slippery after flooding. The employer spread sawdust on the floor but did not have enough to cover the entire surface. Mr Latimer slipped on an uncovered area and was injured. |
| Decision | The House of Lords held the employer was not in breach. The only practicable way to eliminate the risk completely would have been to close the factory entirely. Given the relatively low risk remaining after sawdust was spread, closing the factory would have been a disproportionate response. |
| Principle | The defendant is not required to take every conceivable precaution — only those that are reasonable in light of the risk. |
If the defendant's conduct has significant social utility or value, the court may be more tolerant of the risk involved.
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