Tort: Breach of Duty

Breach of Duty

The Basic Test

Reasonable Person

A person is negligent if they fail to act as a reasonable person would have done: Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.

Relevant factors include: 

Foresight, vision, sight, eye

How foreseeable the harm was: Roe v Minister of Health [1954] 2 WLR 915.

Harm, injury, bones, X-ray

The seriousness of the harm: The Wagon Mound (No 2) [1967] 1 AC 617.

Old law books

Any special vulnerabilities the defendant knows the claimant has: Paris v Stepney [1951] AC 367.

Cost, time, money, clock

The cost and effort of precautions: Latimer v AEC [1953] AC 643.

Social, useful, fire fighter

The social utility of the defendant’s activity: Humphrey v Aegis Defence Services [2016] EWCA Civ 11.

Sports, horse riding, rider

The ordinary risks inherent to a game and the rules of sport: Wattleworth v Goodwood Road Racing Co [2004] EWHC 140 (QB).


Raising the Standard

Professionals and Special Skills

For professionals and people who indicate they have special skills, the standard of care is of a reasonable professional in the same field with the same qualifications. This standard is not lowered if the defendant is a learner, trainee or is inexperienced: Wilsher v Essex AHA (1987) 1 QB 730. The standard imposed on professionals is subject to the Bolam test.

The Bolam Test: if the defendant acted in a manner which would would be accepted as proper practice by a responsible body of professionals skilled in the same art, he is not negligent: Bolam v Friern [1957] 1 WLR 583.

Caveat to the Bolam Test: However, the responsible body of professionals must have logical and defensible reasons to accept the practice as proper. Otherwise, the practice is negligent: Bolitho v City & Hackney HA [1997] 3 WLR 1151.

‘Duty to Inform’ Cases

The Bolam test does not apply where the professional is under a duty to warn the claimant on the risks of undertaking a particular action: Montgomery v Lanarkshire Health Board [2015] UKSC 11. Instead, the defendant must disclose all ‘material’ risks. This is any risk which a reasonable claimant would think significant, or which the professional believes the claimant think significant. 


Lowering the Standard

No Lower Standard for Trainees

The standard of care in negligence is not lowered if the defendant is a learner, trainee or is inexperienced: Nettleship v Weston [1971] 3 WLR 370.

Cases Where the Standard is Lower
Child blowing bubbles

Children are only required to act as a reasonable child of the same age would: Mullin v Richards [1998] 1 WLR 1304.

Illness, virus

People who are unaware they have a physical illness need only act like a reasonable ill person who is also unaware: Mansfield v Weetabix [1997] EWCA Civ 1352. This is not the case if the claimant has reason to believe they are ill: Roberts v Ramsbottom [1980] 1 WLR 823.

Horseplay, children playing, boys splashing

People engaging in consensual ‘horseplay’ are only negligent if their conduct is reckless or highly careless: Blake v Galloway [2004] 3 All ER 315.


Res Ipsa Loquitur

What is Res Ipsa Loquitur?

Ordinarily, the claimant must provide specific proof of the actions and omissions they allege to be the breach. However, the doctrine of res ipsa loquitur allows the claimant to succeed even when they cannot prove what exactly caused the accident. The doctrine applies whenever the claimant can show that:

  1. The defendant had the power to manage or control the situation in which the accident occurred; and 
  2. The accident does not ordinarily happen, assuming proper care is used in managing or controlling the situation: Scott v London and St Katharine Docks Co (1865) 3 H&C 596.
The Effect of Res Ipsa Loquitur

The doctrine does not strictly shift the burden of proof onto the defendant: Ng Chun Pui v Lee Chuen Tat [1988] RTR 298. Rather, it provides prima facie evidence which can discharge the claimant’s burden of proving breach. The defendant can provide a contrary explanation. If they so, the judge must re-evaluate whether it is still reasonable to assume the accident must have resulted from negligence. 


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Breach of Duty Quiz

Test yourself on the law surrounding breach of duty in negligence.

1 / 13

If the defendant owes the claimant a duty to inform them as to the risks involved in an activity, what risks must the defendant tell the claimant of to fulfil the duty?

2 / 13

What standard of care is imposed on children in the tort of negligence?

3 / 13

What two criteria must be established for the doctrine of res ipsa loquitur to apply in negligence?

4 / 13

According to the Bolam test, when will a professional defendant not be in breach of their duty in negligence?

5 / 13

When does the Bolam test not apply when determining if a professional is in breach of their duty in negligence?

6 / 13

Which 5 factors are relevant to whether the defendant has breached a duty of care they owe in negligence?

7 / 13

To what standard is a professional or person with special skills held to in negligence?

8 / 13

The standard of care in negligence lowered for learners, trainees or the inexperienced. True or false?

 

9 / 13

For the purposes of a duty to inform in negligence, what is a 'material risk'?

10 / 13

What is the significance of the claimant establishing the doctrine of res ipsa loquitur?

11 / 13

When does a person breach their duty of care?

12 / 13

What standard is a physically ill defendant held to in the tort of negligence?

13 / 13

Complete this sentence. People engaging in consensual ‘horseplay’ are only negligent if...

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