Breach of duty in English law

For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man. Establishing a breach of duty and ascertaining the standard of care is complex and before establishing that the duty of care has been breached the plaintiff must first prove that the defendant owed him a duty of care.

The standard of care is defined as the measures that a reasonable person (in the circumstances of the defendant) take to reduce the risk of harm. In other words, it is the response of a reasonable person to a foreseeable risk. The standard of care naturally varies over time, and is effected by circumstantial factors. Thus, when a standard of care is established in one case, it will not automatically become a precedent for another - each case is judged on its own facts.

The standard of "the man on the Clapham omnibus" is not applied in all cases, since this might lead to unfairness. There are defendants for whom this standard is much too low and would exonerate an obvious wrongdoing. In other cases, the standard may be seen as too demanding of the defendant in the circumstances. The most common examples are the cases of specialist defendants, inexperienced defendants and child defendants.

In the usual case, having established that there is a duty of care, the claimant must prove that the defendant failed to do what the reasonable person ("reasonable professional", "reasonable child") would have done in the same situation. If the defendant fails to come up to the standard, this will be a breach of the duty of care. This is judged by reference to the following factors:

• What did the defendant know? According to Denning LJ. in Roe v Minister of Health (1954) 2 AER 131, the defendant will only be liable if the reasonable person would have foreseen the loss or damage in the circumstances prevailing at the time of the alleged breach of duty.
• What was the degree of risk? The greater the risk that serious harm can be inflicted, the greater the precautions that the defendant will be required to take. In Bolton v Stone[1951] A.C. 850, [1951] 1 All E.R. 1078, a cricket club was not negligent when a ball was hit out of the ground and injured the plaintiff, because the likelihood of this occurring was so small that the defendant could not be expected to have taken precautions. In Miller v. Jackson ([1977] QB 966, [1977] 3 WLR 20, [1977] 3 All ER 338 however, the ball was hit out of the ground several times every season. In these circumstances, the club was expected to take precautions.
• How practical were these precautions? In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997) EWCA Civ 2644 it was held that a primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. In Haley v London Electricity Board [1964] 3 All ER 185, a blind man fell into a hole in the ground that was indicated by a visual sign. He became deaf as a result. It was held that it was foreseeable that a blind man would be walking on the street and the risk of him injuring himself justified the precautions of putting up a barrier. The test is a balance of reasonableness of precautions against the likelihood of injury being sustained.
• What is the social importance of the defendant's activity? If the defendant's actions serve a socially useful purpose then they may have been justified in taking greater risks. Thus, in Watt v Hertfordshire CC (1954) 2 AER 368, the fire brigade was not negligent in getting the wrong vehicle to the scene of an accident because valuable time would have been lost in getting the best vehicle there to help. Since 26 July 2006, this consideration has had a statutory basis under section 1 of the Compensation Act 2006.
• Common practice. A defendant complying with a common practice in his area of activity will usually be considered to have met the standard of a reasonable man, unless the court judges the practice itself to be negligent. In Paris v Stepney Borough Council (1951) 1 AER 42 although there was a practice of not providing employees with safety goggles, the Council owed a special duty to protect the claimant because he had already lost the sight of one eye.

THE OBLIGATION TO PROVE ONE'S ASSERTION is burden of proof. Whether or not the defendant in a given case has conducted himself below the standard of "a reasonable person" is a question of fact and it is for the claimant to prove this fact. However, in certain situations it is unlikely that a certain event could take place without the defendant's negligence, for example if a surgeon left a scalpel in the patient's body. In such cases, it is said that "the thing speaks for itself" (res ipsa loquitur), and it is for the defendant to show that the fact causing the damage was not attributable to his negligence.

The claimant may raise res ipsa loquitur to shift the evidential burden to the defendant. To do so, following criteria must be satisfied:

1. The incident occurred in an unexplainable fashion;
2. The incident would not have occurred in the ordinary course of events if not defendant's negligence; and
3. The defendant or defendants had control of the injury causing object.

• Damages
• Bolam Test

• Thomas Beven, "Principles of the Law of Negligence", London: Stevens & Haynes (1889).
• Wenham, David. (1998). "Negligent Children". 4 WebJCLI