Breach of the Duty of Care (OCR A-Level Law): Revision Notes
Breach of the Duty of Care
Introduction
Once a duty of care has been established, the claimant must prove that the defendant breached that duty. This involves demonstrating that the defendant fell below the standard of care expected in the circumstances. The law applies an objective test to determine whether a breach has occurred.
Objective standard of care and the 'reasonable man'
The reasonable person test
The fundamental test for breach comes from Blyth v Birmingham Water Works (1856), which established that a breach occurs when someone is:
omitting to do something a reasonable man would do, or doing something a reasonable man would not do
This is an objective test, meaning the defendant's conduct is judged against what a hypothetical reasonable person would have done in the same situation, not what the defendant subjectively thought was appropriate. The test originated in Vaughan v Menlove (1837).
The objective nature of the reasonable person test means that personal circumstances, inexperience, or good intentions are generally irrelevant. The court asks: "What would a reasonable person have done in these circumstances?" rather than "Did this defendant do their best?"
Variations to the standard
Although the test is objective, the courts recognise that the appropriate standard may vary depending on the defendant's role or characteristics. Knowledge and expertise relevant to the situation may be attributed to the reasonable person.
Professionals
A professional will be judged by the standard of a reasonable person of that profession, not an ordinary reasonable person. This means doctors are compared to reasonable doctors, solicitors to reasonable solicitors, and so forth.
Worked Example: Bolam v Frien Hospital Management Committee (1957)
Facts: The claimant was undergoing electroconvulsive therapy (ECT) for mental illness. The doctor did not administer relaxant drugs, and the claimant suffered a serious fracture.
Court's reasoning: A professional must be judged by the standard of a competent professional in that field, not by an ordinary reasonable person.
Outcome: The test applied was whether the doctor acted in accordance with a practice accepted as proper by a responsible body of medical professionals.
This principle has been modified for advice given by healthcare professionals following Montgomery v Lanarkshire (2015), which requires doctors to ensure patients understand material risks.
Trainees and learners
The professional standard does not apply to trainees or learners. Someone learning a skill is judged by the standard of the competent professional, not a reasonable learner.
Critical distinction: Learners and trainees receive no allowance for their inexperience. They must meet the same standard as a fully competent professional. This protects third parties who rely on professional services and have no way of knowing whether they are dealing with an expert or a learner.
Worked Example: Nettleship v Weston (1971)
Facts: The defendant was a learner driver who injured the claimant, her driving instructor. Despite being a learner, she was judged by the standard of a reasonably competent driver.
Court's reasoning: The court held that other road users are entitled to expect all drivers to meet the same standard of care, regardless of experience level. It would be unfair and impractical to require other road users to adjust their expectations based on driver experience.
Outcome: The learner driver was liable because she failed to meet the standard of a competent driver, even though she was still learning.
Children
A child will be judged by the standard of a reasonable child of similar age and maturity, not by adult standards.
Worked Example: Mullin v Richards (1998)
Facts: Two 15-year-old schoolgirls were play-fighting with plastic rulers. When a ruler snapped, a splinter went into one girl's eye, causing blindness.
Court's reasoning: Children should be judged by the standard of a reasonable child of the same age, considering what a child of that age could reasonably foresee. The court must ask what a reasonable 15-year-old would have foreseen, not what a reasonable adult would have foreseen.
Outcome: The defendant was not liable because a reasonable 15-year-old child would not have foreseen the risk of serious injury from ruler-fighting.
Risk factors
When determining whether the defendant acted reasonably, the court considers four key factors. These factors help establish whether the defendant's conduct met the required standard of care in the specific circumstances.
Degree of risk involved
The greater the risk of harm, the more precautions a defendant must take to meet the standard of a reasonable person. Conversely, if the risk is minimal, fewer precautions are required.
Worked Example: Bolton v Stone (1951)
Facts: The case concerned whether a cricket club should have taken precautions to prevent someone outside the ground being hit by a cricket ball.
Court's analysis of risk: The court found the risk was very small – balls had only been hit out of the ground six times in 30 years.
Application of the test: Because the degree of risk was so low, the level of precautions required was correspondingly low.
Outcome: The cricket club had not breached its duty of care because a reasonable person would not have taken further precautions against such a minimal risk.
Cost of precautions
The court will not require the cost of precautions to outweigh the risk involved. A defendant does not have to take excessive or disproportionate measures to guard against minor risks. A reasonable person would take reasonable precautions given the circumstances.
Worked Example: Latimer v AEC (1952)
Facts: The claimant worked at the defendant's factory and slipped on the floor after flooding. The defendant had mopped up, erected warning signs, and placed sawdust in the most frequently used areas.
The only alternative: The only way to eliminate all risk would have been to close the entire factory.
Court's reasoning: The court balanced the cost of precautions (closing the entire factory) against the remaining risk (slipping on damp floors in less-used areas).
Outcome: The defendant had taken reasonable precautions given the circumstances, and closing the factory would have been a disproportionate response to the risk. The cost was too high relative to the benefit.
Potential seriousness of injury
The more serious the potential injury, the greater the level of care required to meet the standard of a reasonable person. If the defendant knows the claimant is particularly vulnerable, higher precautions are necessary.
Worked Example: Paris v Stepney Borough Council (1951)
Facts: The claimant had sight in only one eye. While working for the defendant, a splinter of metal went into his good eye, causing complete blindness. The employer had not provided safety goggles.
Key consideration: Although it might have been acceptable not to provide goggles to workers with normal sight, the employer knew the claimant had only one eye.
Application of the test: The potential consequence of injury was much more serious for the claimant (total blindness rather than loss of sight in one eye), so a higher standard of care was required.
Outcome: The employer breached the duty of care because the increased seriousness of potential harm required additional precautions that would not otherwise have been necessary.
Importance of the activity
Some risk may be acceptable if the activity being undertaken is socially important or beneficial. The courts recognise that emergency services and similar activities may justify accepting greater risks.
Worked Example: Watt v Hertfordshire County Council (1954)
Facts: The claimant was a firefighter injured by equipment that was not properly secured in the vehicle. The fire crew was rushing to save a woman trapped under a vehicle.
Court's balancing exercise: The court weighed the risk to the firefighter against the social importance of the rescue mission.
Reasoning: The benefits of acting quickly to save life outweighed the risks involved. A reasonable person in the defendant's position would have acted similarly.
Outcome: The risk was acceptable given the social importance of the rescue mission. The defendant had not breached the duty of care.
Exam guidance on risk factors
Essential exam technique: When applying risk factors in exam answers, you must clearly explain how each factor affects the standard of the reasonable person. Simply listing the factors without linking them to the standard of care will not achieve high marks.
Always explain:
- Whether each factor raises or lowers the required standard
- Why this is the case in the specific scenario
- How the factors interact with each other in the particular circumstances
Key cases summary
This table provides a quick reference for the key cases on breach of duty. When revising, ensure you understand not just the facts and outcomes, but the underlying legal principles each case establishes and how these principles apply in different scenarios.
| Case | Facts | Legal principle |
|---|---|---|
| Bolam v Frien Hospital Management Committee (1957) | Claimant undergoing ECT for mental illness; doctor did not give relaxant drugs; claimant suffered serious fracture | A professional is judged by the standard of a reasonable person of that profession, not by the standard of an ordinary reasonable person |
| Nettleship v Weston (1971) | Learner driver injured her driving instructor | Trainees are judged by the standard of the competent professional, not by the standard of a reasonable learner |
| Mullin v Richards (1998) | Two 15-year-old schoolgirls fighting with plastic rulers; ruler snapped and splinter caused blindness | A child is judged by the standard of a reasonable child of similar age |
| Bolton v Stone (1951) | Cricket club and injury from cricket ball hit outside ground | The greater the risk, the more precautions required to meet the standard of a reasonable person |
| Latimer v AEC (1952) | Worker slipped on factory floor; employer had mopped, erected signs, and placed sawdust in most used areas | The cost of precautions should not outweigh the risk; defendants need not take excessive measures against minor risks |
| Paris v Stepney Borough Council (1951) | Metal splinter went into one-sighted worker's good eye, causing complete blindness; employer did not provide goggles | The more serious the potential injury, the greater the level of care required |
| Watt v Hertfordshire County Council (1954) | Firefighter injured by unsecured equipment while rushing to save someone trapped | Some risk is acceptable if the activity undertaken is socially important |
Damage
After establishing a breach of duty, the claimant must prove that this breach caused damage. The resulting damage must meet two requirements:
- It must have been caused by the breach (factual causation)
- It must not be too remote from the breach (legal causation)
Factual causation and the 'but for' test
The injury or damage must have been caused by the breach of the duty of care. This is established using the 'but for' test: would the damage have occurred but for the defendant's breach?
If the answer is no – meaning the damage would not have happened but for the breach – then factual causation is established. If the damage would have occurred anyway, regardless of the breach, then factual causation fails.
Worked Example: Barnett v Chelsea Hospital (1969)
Facts: A man attended hospital complaining of vomiting after drinking tea. The doctor negligently failed to examine him and sent him home. The man died from arsenic poisoning.
Application of the 'but for' test: But for the doctor's breach (failing to examine), would the man have died? The court asked: would proper examination and treatment have prevented his death?
Medical evidence: Even if the doctor had examined and treated him properly, he would still have died from the arsenic poisoning – it was too advanced.
Outcome: The 'but for' test was not satisfied because the man would have died even without the breach. Therefore, the breach did not cause the death, and the doctor was not liable.
Legal causation (remoteness of loss/damage)
Even if factual causation is established, the claimant must prove the damage was not too remote from the breach. The key question is whether the type of damage was reasonably foreseeable as a consequence of the breach.
The test for remoteness
The Wagon Mound (1961) established that loss must be reasonably foreseeable as a consequence of the breach. If the type of damage is not foreseeable, it is regarded as being too remote from the breach, and the defendant will not be liable.
However, the precise chain of events leading from breach to damage need not be foreseeable, provided the type of damage itself was foreseeable.
Worked Example: Hughes v Lord Advocate (1962)
Facts: Post Office workers left a manhole uncovered with paraffin lamps around it. A child knocked a lamp into the hole, causing an explosion and burns.
What was foreseeable? Burns from a naked flame (paraffin lamps) were foreseeable.
What was not foreseeable? The specific mechanism – an explosion caused by the lamp falling into the manhole – was not foreseeable.
Court's reasoning: The type of damage (burns) was foreseeable, even though the precise mechanism (explosion) was not. This is sufficient for legal causation.
Outcome: The damage was not too remote because burns were a foreseeable consequence of leaving paraffin lamps unattended near children.
Novus actus interveniens (new intervening act)
A novus actus interveniens is a new intervening act that may break the chain of causation between the breach and the damage. However, if the intervening act is reasonably foreseeable, it will not break the chain of causation, and the damage will not be considered too remote.
Only an unforeseeable intervening act will render the loss too remote from the original breach. Common examples of intervening acts include:
- Actions by third parties
- Natural events
- Actions by the claimant themselves
The key question is always: was this intervening act reasonably foreseeable given the defendant's breach?
The thin-skull rule
It is not necessary for the extent or severity of the damage to be foreseeable. This is known as the thin-skull rule (or egg-shell skull rule). The defendant must take the claimant as they find them.
The thin-skull rule: Once the type of damage is foreseeable, the defendant is liable for the full extent of the damage, even if the severity is unforeseeable due to the claimant's pre-existing condition or vulnerability.
This means:
- The type of damage must be foreseeable
- The extent or severity of damage need not be foreseeable
- Defendants cannot argue they should only be liable for "normal" damage
Worked Example: Smith v Leech Brain (1962)
Facts: The claimant's husband was burned on the lip by molten metal due to the defendant's negligence. The burn was minor, but because he had a pre-cancerous condition, it triggered cancer and he died.
What was foreseeable? A burn injury from molten metal.
What was not foreseeable? That a minor burn would trigger cancer and cause death.
Application of the thin-skull rule: The defendants were liable for the full extent of the damage (death), even though only a minor burn was foreseeable.
Reasoning: They had to take the victim as they found him – including his pre-cancerous condition. The type of damage (burns) was foreseeable; the extent (death) did not need to be.
Exam technique
Problem questions
When answering problem questions on breach:
1. Identify the relevant standard – Determine whether the defendant is a professional, child, or learner, and state the appropriate standard clearly. For example:
- "As a doctor, the defendant will be judged by the standard of a reasonable medical professional"
- "As a learner, the defendant will be judged by the standard of a competent practitioner"
- "As an 8-year-old child, the defendant will be judged by the standard of a reasonable 8-year-old"
2. Apply the risk factors – Consider all four factors and explain how each affects whether the defendant met the required standard. Do not simply list them; explain their impact on the standard of care. For each factor:
- State what the factor is in the scenario
- Explain whether it raises or lowers the required standard
- Apply relevant case law
- Reach a mini-conclusion for that factor
3. Apply causation tests – Use the 'but for' test for factual causation, then consider foreseeability and remoteness for legal causation:
- Ask: "But for the breach, would the damage have occurred?"
- If yes, consider the type of damage and whether it was reasonably foreseeable
- Consider any intervening acts
- Apply the thin-skull rule if relevant
4. Reach a clear conclusion – State whether the duty has been breached and whether the breach caused the damage. Your conclusion should follow logically from your analysis.
Essay questions
When evaluating or discussing breach:
- Consider how the reasonable person test balances fairness with the need to compensate victims
- Discuss whether different standards for different defendants (professionals, children, learners) are justifiable
- Analyse how risk factors allow flexibility while maintaining objectivity
- Evaluate the thin-skull rule and whether defendants should be liable for unforeseeable extent of harm
- Consider policy implications of causation rules and how they reflect judicial precedent development
Key Points to Remember:
-
The reasonable person test is objective: Defendants are judged against what a reasonable person would have done, not what they subjectively believed was right
-
Standards vary by defendant type:
- Professionals are judged by the standard of their profession
- Learners are judged as competent professionals (no allowance for inexperience)
- Children are judged as reasonable children of similar age
-
Four risk factors determine whether the standard was met:
- Degree of risk – higher risk requires more precautions
- Cost of precautions – must be proportionate to the risk
- Seriousness of potential injury – more serious injuries require greater care
- Importance of the activity – socially beneficial activities may justify greater risks
-
Causation has two stages:
- Factual causation requires the 'but for' test: the damage would not have occurred but for the breach
- Legal causation requires the type of damage to be reasonably foreseeable, though the precise chain of events and extent of damage need not be
-
The thin-skull rule: Defendants must take claimants as they find them – the extent of damage need not be foreseeable, only the type
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Essential exam technique: Always link risk factors to their impact on the standard of care in exam answers – listing factors alone is insufficient. Explain how each factor raises or lowers the required standard in the specific circumstances.