5. Negligence: breach of duty

Breach of Duty and the Reasonable Person

The Objective Standard: Once a duty of care is established, the claimant must prove that the defendant breached that duty. To decide this, the court applies an objective test: would a reasonable person in the defendant's position have acted the way the defendant did?

The Blyth Test: The classic definition of negligence was set out by Alderson B. in Blyth v Birmingham Waterworks Co: "Negligence is the omission to do something which a reasonable man guided upon those conditions which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do."

The Risk Factors

The standard of care expected of a reasonable person is not fixed. In determining whether a defendant's conduct fell below the expected standard, the courts balance four key factors known collectively as the "risk factor".

1. The Likelihood of Harm: A defendant must guard against reasonably foreseeable risks. As Lord Wright explained, the degree of care required must be proportioned to the degree of risk involved. If the chance of harm is very small, it may be reasonable to take few or no precautions.

Cricket Balls and Foreseeable Risk: In Bolton v Stone, cricket balls were hit out of a ground only very rarely over several decades, making the risk of hitting a passerby minute; the House of Lords held that the club was not negligent in failing to take further precautions. By contrast, in Miller v Jackson, balls were hit out of the ground eight or nine times per season and regularly damaged the claimant's property. Because the risk of harm was substantial, the defendants were held liable.

2. The Seriousness of the Injury Risked: The court must also consider the gravity of the potential injury. Where a defendant knows that a particular individual is at risk of greater or more catastrophic harm than others, a higher standard of care is demanded.

The Vulnerable Claimant: In Paris v Stepney Borough Council, an employer knew that a garage mechanic was already blind in one eye. While removing a vehicle part, a metal splinter struck his remaining good eye, blinding him completely. The House of Lords held that the employer was negligent in failing to provide him with goggles; although the risk of an accident was the same as for any other worker, the potential consequence for this specific workman was total blindness rather than the loss of one eye.

3. The Cost and Practicability of Precautions: The court will weigh the seriousness of the risk against the cost and difficulty of taking precautions. If eliminating the risk requires extreme expense or disruptive measures out of all proportion to the danger, the defendant may be justified in not taking them.

Balancing Risk and Burden: In Latimer v AEC Ltd, Lord Denning observed that "in every case of foreseeable risk, it is a matter of balancing the risk against the measures necessary to eliminate it." In that case, after a factory floor became slippery from flooding, the owners spread sawdust and did what they reasonably could; closing the entire factory would have been an excessively drastic and costly step for a minor risk, so they were not negligent. Similarly, in Smith v Littlewoods Organisation Ltd, the defendants were not liable for damage caused by trespassers because preventing it would have required posting a 24-hour guard, imposing an intolerable and disproportionate burden on the occupier.

4. The Social Utility of the Activity: The seriousness of the risk must also be weighed against the social value of the defendant's conduct. An emergency action taken to preserve life or limb justifies risks that would be unacceptable in ordinary daily activities or commercial pursuits.

Emergencies versus Commercial Gain: In Watt v Hertfordshire County Council, a firefighter was injured by an unsecured heavy jack while traveling in an emergency vehicle to save a trapped woman. The court held that the fire authority was not negligent because the risk taken was justified by the urgent need to save a life. As Lord Denning remarked, the commercial end of making a profit is very different from the human end of saving life or limb.

Characteristics of the Reasonable Person

Intelligence and Personal Limitations: The standard of care is strictly objective. A defendant is judged by the standard of a person of ordinary intelligence and prudence, and it is no defence to claim that they acted to the best of their own judgment if their personal best falls below that objective standard. Slowness of reaction or lower-than-average intelligence will not excuse substandard conduct.

Everyday Knowledge and Position: Every reasonable adult is expected to have basic common sense knowledge, such as knowing that petrol is highly inflammable or that gas is dangerous to inhale. Furthermore, a person holding a specific post is expected to possess the knowledge typical of that role. In The Wagon Mound (No 2), shipowners were held liable for a dock fire because their chief engineer ought to have known that discharging furnace oil onto the water created a real risk of fire.

Awareness of Surroundings: A defendant must also observe what any reasonable person would notice in their surroundings. An occupier is negligent if they ignore dangerous stairs in disrepair or an open septic tank. Where an occupier lacks technical competence, the reasonable standard requires hiring qualified experts to inspect complex installations.

Actual Knowledge and Vulnerability: When a defendant possesses actual knowledge of a claimant's special condition, the standard of care rises. As illustrated in Paris v Stepney Borough Council, knowing that a worker had only one eye required extra protective measures. Similarly, a higher standard of care is owed to young children, elderly persons, and pregnant women because their vulnerabilities increase the likelihood or gravity of injury.

Professional and Special Skills

The Standard of the Profession: Anyone who professes a special skill—such as a doctor, lawyer, or driver—is held to the standard of competence reasonably expected of someone in that calling. A surgeon must display the skill of a normal, competent member of the surgical profession, whereas a jeweller who pierces ears is judged against a competent jeweller, not a qualified surgeon.

The Bolam Principle: In Bolam v Friern Hospital Management Committee, a psychiatric patient suffered a pelvic fracture during electro-convulsive therapy (ECT) administered without relaxant drugs or physical restraints. Professional medical opinion was divided on whether relaxants were beneficial or dangerous. The court held that a professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of professional opinion.

The Ordinary Skilled Man: McNair J. explained in Bolam that where an activity requires special skill, the test is not that of the ordinary passenger on the Clapham omnibus. Instead, the law applies the standard of the ordinary skilled person exercising that professing skill: "A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

Learner Drivers: Although inexperience might suggest allowance, the common law applies the standard of care strictly to learner drivers. In Nettleship v Weston, a learner driver crashed into a post and injured her instructor. The Court of Appeal held that a learner is held to the same objective standard as an ordinary qualified driver, regardless of inexperience. As Lord Denning famously put it, "a learner driver may be doing his best, but his incompetence is not good enough," because a car is a potentially lethal weapon and public safety demands an unyielding standard.