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:
In the context of 'horseplay', there is a breach of duty of care only where the defendant's conduct amounts to recklessness or a very high degree of carelessness:
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
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 thus a breach of duty was found in order to ensure the vicim was compensated whereas Mansfield involved property damage which would have been covered by insurance.]
Applying the objective test
In deciding whether the defendant has acted reasonably or is in breach of duty, the courts weigh up four factors:
1. Likelihood of harm:
The defendant is not expected to guard against events which can not be foreseen:
