Breach of duty

Breach of duty may be found to exist where the defendant fails to meet the standard required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective, however, there may be slight variations to this.

The objective test:

Breach of duty is decided by the objective test ie the defendant is expected to meet the standard of a reasonable person:

Vaughan v Menlove (1837) 3 Bing. N.C. 467 Case summary

The objective test can be variable and may depend on the circumstances of the particular defendant or the situation. For example:

An amateur footballer is not expected to meet the standard of a footballer in the first division:

Condon v Basi [1985] 1 WLR 866 Case summary

In the context of 'horseplay', there is a breach of the duty of care only where the defendant's conduct amounts to recklessness or a very high degree of carelessness:

Blake v Galloway [2004] 3 All ER 315 Case summary

If the defendant is a professional they will be held to the standard of a reasonable person within that profession. This applies also to trainees:

Willsher v Essex [1988] 1 AC 1074 Case summary

Likewise, a learner driver is expected to meet the same standard as a reasonable competent qualified driver:

Nettleship v Weston [1971] 3 WLR 370 Case summary

Where there is divided opinion within a profession as to the appropriate course of action in a particular situation then a defendant is not to be treated as in breach of duty by following one body of opinion rather than the other:

Bolam v Friern [1957] 1 W.L.R. 583, 587 Case summary

The Bolam test:

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

However, the opinion must be defensible and rooted in logic:

Bolitho v City & Hackney Health Authority

[1997] 3 WLR 1151 Case summary

A child is not expected to meet the standard of a reasonable adult, but will be judged by the standard of a reasonable child of the same age:

Mullin v Richards [1998] 1 WLR 1304 Case summary

The courts have not taken a consistent approach in relation to where the defendant's conduct is affected by illness. Compare the cases:

Roberts v Ramsbottom [1980] 1 WLR 823 Case summary

Mansfield v Weetabix [1997] EWCA Civ 1352 Case summary

[The inconsistencies are often explained on policy grounds; in that Roberts concerned personal injury sustained by a pedestrian and Mansfield involved property damage which would have been covered by insurance.]

Applying the objective test

In deciding whether the defendant has acted reasonably the courts weigh up four factors:

1. Likelihood of harm:

The defendant is not expected to guard against events which can not be foreseen:

Roe v Minister of Health [1954] 2 WLR 915 Case summary