LAW OF TORT

THE TORT OF NEGLIGENCE

BREACH OF DUTY

THE STANDARD OF CARE AND THE OBJECTIVE TEST

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTRODUCTION TO BREACH OF DUTY

Position of Breach of Duty in Negligence

• Breach of duty is the second element of negligence.

• Even if a duty of care exists, the claimant must prove that the defendant breached that duty.

• A defendant breaches a duty of care when they fail to meet the required standard of care.

• The court compares:

• The defendant’s conduct.

• The conduct expected of a reasonable person.

• If the defendant’s conduct falls below the required standard, a breach occurs.

Definition of Breach of Duty

• Breach of duty occurs when the defendant fails to exercise the level of care required by law.

• The claimant must prove:

• Duty of care existed.

• Required standard of care was not met.

• The question asked by the court is:

Did the defendant act as a reasonable person would have acted in the circumstances?

THE STANDARD OF CARE

Meaning

• The standard of care refers to the level of care expected by law.

• It is the benchmark used to determine whether the defendant acted negligently.

• The standard is generally objective rather than subjective.

General Rule

The Reasonable Person Test

• The law compares the defendant’s conduct with that of a hypothetical reasonable person.

• The reasonable person:

• Is careful.

• Is prudent.

• Takes reasonable precautions.

• Is not perfect.

• Is not exceptionally skilled.

• The reasonable person represents an average member of society exercising ordinary care.

THE OBJECTIVE TEST

Definition

• An objective test measures conduct against an external standard.

• The defendant’s personal beliefs, intelligence or experience are usually irrelevant.

• The court asks:

What would a reasonable person have done in these circumstances?

Why Is the Objective Test Used?

Consistency

• Ensures uniform standards.

Fairness

• Same standard applies to everyone.

Predictability

• Creates certainty in negligence law.

Public Protection

• Encourages reasonable care.

Characteristics of the Objective Test

Not Based on Defendant’s Personal Opinion

• Defendant cannot argue:

• “I thought I was being careful.”

Not Based on Defendant’s Inexperience

• Lack of skill usually provides no defence.

Not Based on Defendant’s Intelligence

• Low intelligence generally irrelevant.

Based on Community Standards

• Reflects reasonable behaviour expected by society.

THE REASONABLE PERSON

Leading Case: Vaughan v Menlove

Facts

• Defendant stacked hay in a manner that created risk of fire.

• Defendant had been warned repeatedly.

• Hay ignited and damaged claimant’s property.

Defendant’s Argument

• Claimed he had acted according to his own best judgment.

Decision

• Defendant liable.

Principle

• Personal judgment is irrelevant.

• Objective standard applies.

Rule Established

• Defendant judged according to standard of reasonable person.

Significance

• Foundation of the objective test.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

APPLICATION OF THE OBJECTIVE TEST

Adults

General Rule

• Adults judged according to ordinary reasonable person standard.

• Personal shortcomings generally ignored.

Learner Drivers

Leading Case: Nettleship v Weston

Facts

• Learner driver injured instructor during driving lesson.

Defendant’s Argument

• She was inexperienced.

Decision

• Defendant liable.

Principle

• Learner drivers judged by standard of competent qualified drivers.

Rule Established

• Inexperience is not a defence.

Significance

• Confirms objective nature of negligence.

Newly Qualified Professionals

General Rule

• Same standard as reasonably competent member of profession.

• Lack of experience is irrelevant.

CHILDREN AND THE OBJECTIVE TEST

General Rule

• Children are not judged by adult standards.

• Courts apply a modified objective test.

Leading Case: Mullin v Richards

Facts

• Two schoolgirls fencing with plastic rulers.

• One ruler snapped.

• Injury caused to claimant.

Decision

• Defendant not liable.

Principle

• Child judged against reasonable child of same age.

Rule Established

• Standard adjusted for age.

Significance

• Important exception to ordinary objective test.

Leading Case: Orchard v Lee

Facts

• Thirteen-year-old boys playing tag.

• Collision occurred.

Decision

• No liability.

Principle

• Normal child behaviour not negligent.

Significance

• Confirms modified child standard.

PROFESSIONALS AND THE STANDARD OF CARE

General Rule

• Professionals judged according to standards of reasonably competent professionals in their field.

• Higher skill leads to higher standard.

The Bolam Test

Leading Case: Bolam v Friern Hospital Management Committee

Facts

• Patient underwent electroconvulsive therapy.

• No restraints used.

• Patient suffered fractures.

Decision

• Doctor not liable.

Principle

• Professional not negligent if acting in accordance with responsible body of professional opinion.

Bolam Test

A professional is not negligent if:

• Conduct supported by responsible body of professional opinion.

Significance

• Foundation of professional negligence law.

The Bolitho Qualification

Leading Case: Bolitho v City and Hackney Health Authority

Facts

• Child suffered brain damage after medical treatment issues.

Decision

• Court not bound to accept all professional opinions.

Principle

• Professional opinion must withstand logical analysis.

Rule Established

• Courts may reject unreasonable expert opinions.

Significance

• Limits Bolam protection.

FACTORS AFFECTING THE STANDARD OF CARE

1. FORESEEABILITY OF HARM

Principle

• Greater foreseeable risk requires greater precautions.

Leading Case: Bolton v Stone

Facts

• Cricket ball hit claimant outside cricket ground.

Evidence

• Balls rarely left the ground.

Decision

• No liability.

Principle

• Very low risk may not require extensive precautions.

Significance

• Probability of harm affects standard of care.

2. MAGNITUDE OF RISK

Principle

• Serious potential injury requires greater care.

Leading Case: Paris v Stepney Borough Council

Facts

• One-eyed employee injured while working.

• Employer failed to provide goggles.

Decision

• Employer liable.

Principle

• Greater risk of serious injury requires greater precautions.

Significance

• Severity of consequences affects standard.

3. COST AND PRACTICABILITY OF PRECAUTIONS

Principle

• Courts consider practicality of precautions.

Leading Case: Latimer v AEC Ltd

Facts

• Factory floor became slippery after flooding.

• Employer spread sawdust.

• Employee slipped.

Decision

• Employer not liable.

Principle

• Reasonable precautions sufficient.

Significance

• Law does not require elimination of every risk.

4. SOCIAL UTILITY OF DEFENDANT’S CONDUCT

Principle

• Useful activities may justify taking certain risks.

Leading Case: Watt v Hertfordshire County Council

Facts

• Firefighters transporting equipment to emergency.

• Claimant injured.

Decision

• No liability.

Principle

• Social importance of activity considered.

Significance

• Public benefit may justify increased risks.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

RES IPSA LOQUITUR

Meaning

• Latin phrase meaning:

“The thing speaks for itself.”

Purpose

• Helps claimant where exact cause of accident unknown.

• Allows court to infer negligence from circumstances.

Requirements

Requirement 1

• Accident would not normally occur without negligence.

Requirement 2

• Defendant had control of situation.

Requirement 3

• No reasonable alternative explanation.

Leading Case: Scott v London and St Katherine Docks Co

Facts

• Bags of sugar fell onto claimant.

Decision

• Negligence inferred.

Principle

• Established doctrine of res ipsa loquitur.

CRITICISMS OF THE OBJECTIVE TEST

Ignores Individual Limitations

• Different people possess different abilities.

• Objective standard may seem harsh.

Can Be Strict

• Inexperienced individuals judged by experienced standards.

Example

• Learner drivers.

Potential Unfairness

• Some defendants may be held liable despite genuine efforts.

ADVANTAGES OF THE OBJECTIVE TEST

Certainty

• Creates predictable standards.

Consistency

• Same rules apply to everyone.

Public Protection

• Encourages safe conduct.

Fairness

• Prevents defendants relying on personal incompetence.

EXAMINATION FOCUS

AO1 KNOWLEDGE

Students should know:

• Meaning of breach of duty.

• Standard of care.

• Objective test.

• Reasonable person test.

• Bolam and Bolitho.

• Factors affecting standard of care.

• Res ipsa loquitur.

• Leading authorities.

AO2 APPLICATION

Students should be able to:

• Identify appropriate standard of care.

• Determine whether defendant fell below required standard.

• Apply relevant case law.

• Assess factors affecting standard.

AO3 EVALUATION

Strengths

• Consistency.

• Certainty.

• Public protection.

• Fairness through objective standards.

Weaknesses

• Ignores individual limitations.

• Can be harsh.

• Sometimes produces inflexible outcomes.

EXAM QUICK REVISION LIST

Key Cases

• Vaughan v Menlove

• Nettleship v Weston

• Mullin v Richards

• Orchard v Lee

• Bolam v Friern Hospital Management Committee

• Bolitho v City and Hackney Health Authority

• Bolton v Stone

• Paris v Stepney Borough Council

• Latimer v AEC Ltd

• Watt v Hertfordshire County Council

• Scott v London and St Katherine Docks Co

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.