Introduction to the Tort of Negligence - Breach of Duty
The Standard Expected
Negligence is falling below the standard of the ordinary reasonable person. It was stated in Blyth v Birmingham Waterworks: “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.”
Specific rules apply if the defendant is a child, a professional or a learner:
For children, see Mullin v Richards.
In situations which involve some special skill or competence, what has become known as the ‘Bolam test’ is used: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent … it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” See: Bolam v Friern Barnet Hospital.
For learners, see: Nettleship v Weston and Wilsher v Essex Health Authority.
In all other cases, the court will consider the following four factors in deciding if there has been a breach of duty:
(A) The degree of risk involved.
Here the court will consider the likelihood of harm occurring. There was either no known risk or a low risk in: Roe v Minister of Health and in Bolton v Stone.
However, there was a known risk in Haley v London Electricity Board.
(B) The practicability of taking precautions.
The courts expect people to take only reasonable precautions in guarding against harm to others. See, for example Latimer v AEC Ltd.
See also, Haley v London Electricity Board (above) for the taking of insufficient steps.
(C) The seriousness of harm.
Sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example, Paris v Stepney Borough Council.
(D) The social importance of the risky activity.
If the defendant’s actions served a socially useful purpose then he may have been justified in taking greater risks. See, for example, Watt v Hertfordshire County Council.
Proof of Breach
The claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by using the maxim res ipsa loquitur, ie the thing speaks for itself. See: Scott v London & St Katherine Dock Co.