Revise Breach of duty for Cambridge 9084 (4.1.3)

Once a duty of care is established, the claimant must prove that the defendant breached it. The law determines this by using an objective test, not by judging the defendant's personal efforts. The benchmark is the 'reasonable person'. This principle was famously defined by Baron Alderson in Blyth v Birmingham Waterworks Co (1856) as: "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." This means the court invents a hypothetical person and asks what they would have done in the defendant's circumstances. The defendant's conduct is then measured against this standard. It is an impersonal, objective standard that does not account for the defendant's individual shortcomings.

The 'reasonable person' is not a perfect individual but is an average, prudent citizen. They are not expected to have universal knowledge, but they are expected to possess the general knowledge and awareness of a typical person. For example, in Nettleship v Weston (1971), a learner driver was held to the standard of a reasonably competent and experienced driver, not a fellow learner. The court reasoned that the standard of care on the roads must be consistent and predictable for all. However, the standard can be adjusted for certain categories. For children, the test is whether a reasonable child of the defendant's age would have acted in the same way (Mullin v Richards, 1998). For professionals, the standard is elevated to that of a reasonably competent professional in that field, as established in Bolam v Friern Hospital Management Committee (1957).

When the defendant is a professional, such as a doctor, lawyer, or architect, the standard of care is not that of the reasonable person in the street, but that of the reasonable professional in that field. This is known as the Bolam test, from Bolam v Friern Hospital Management Committee (1957). The test states that a professional is not in breach of their duty if they have acted in accordance with a practice accepted as proper by a responsible body of professional opinion. This means that if the defendant can find a group of experts who would have done the same thing, they will likely not be found negligent, even if another group of experts would have acted differently.

However, this test was refined by the House of Lords in Bolitho v City and Hackney Health Authority (1998). The Bolitho 'gloss' adds that the professional opinion relied upon must be capable of withstanding logical analysis. The court reserves the right to declare a common professional practice as negligent if it is not 'responsible, reasonable, and respectable' and lacks a logical basis. This prevents professionals from avoiding liability by relying on an expert opinion that is clearly flawed or irrational.

The court balances several 'risk factors' to decide if the defendant's actions fell below the reasonable standard. The first is the likelihood or probability of the harm occurring. If the risk of injury is very low, a reasonable person might be justified in not taking precautions. In Bolton v Stone (1951), a cricket ball was hit out of the ground, injuring the claimant. As this had only happened six times in 30 years, the risk was considered so small that the cricket club was not liable for failing to prevent it. Conversely, if the risk of harm is higher, greater precautions are required. In Haley v London Electricity Board (1965), the defendants were liable for failing to adequately fence a trench, as it was known that blind people walked in the area, making the likelihood of injury foreseeable and significant.

The second factor is the seriousness or magnitude of the potential harm. If the defendant knows the claimant is particularly vulnerable, the standard of care is higher. In Paris v Stepney Borough Council (1951), a garage worker who was already blind in one eye was not given safety goggles. When a metal splinter blinded his good eye, the employer was held liable. Although the risk of injury was small, the potential consequence (total blindness) was so severe that a reasonable employer should have provided goggles. This is balanced against the third factor: the cost and practicality of taking precautions. The court will not expect a defendant to go to extreme lengths to eliminate a small risk. In Latimer v AEC Ltd (1953), a factory floor became slippery after a flood. The owners put down sawdust but did not have enough to cover the whole area. The court held they had taken all reasonable practical precautions and were not liable; closing the factory would have been disproportionately expensive.

The final factor the court considers is the social utility or importance of the defendant's actions. If the defendant was acting in the public interest or in an emergency, the court may judge their conduct less harshly. In Watt v Hertfordshire County Council (1954), a firefighter was injured by unsecured lifting equipment in a fire engine that was rushing to an emergency to save a woman trapped under a lorry. The court held there was no breach of duty. Lord Denning stated that the risk of injury had to be balanced against the end to be achieved, and saving a life justified taking the risk. This principle acknowledges that some activities, such as those performed by emergency services, inherently involve risk for a greater good, and the standard of care reflects this social value.