2.4.2 Breach of Duty Lecture

Once a duty of care has been found, it is necessary to ask whether the defendant has acted in such a way as to have breached that duty. The key is to ascertain the standard expected of the defendant. It is also necessary to determine whether the defendant has fallen short of this standard.

The standard of care is always based on reasonable foreseeability. The courts will seek to work out what the defendant ought to have foreseen. Cases which involve highly unlikely outcomes are not likely to be successful (Fardon v Harcourt-Rivington [1932]). 

Ascertaining the Standard of Care for Different Defendants

The law strikes a balance between failures that are particularly egregious, and where a genuine accident has occurred. Defendants are held to the standard of the reasonable man (Donoghue v Stevenson).

The general rule is that defendants are expected to act with a reasonable level of skill in the activity they are undertaking (Nettleship v Watson). A defendant cannot rely on their own lack of skill or knowledge as a defence.

There are a number of exceptions to this general rule:

  • The standard may into account certain medical conditions a defendant might be suffering from (Mansfield v Weetabix [1998]).
  • The standard for children is that of an ordinary child of the defendant’s age (Orchard v Lee [2009]).
  • The standard of care expected for those participating in sporting events is that which can be reasonably expected of someone playing the particular sport (Woolridge v Sumner).
  • The standard of care for those who are acting as professionals is not that of a reasonable person, but instead the standard of their profession (Bolam v Friern Hospital Management Committee [1957]).

Clarifying the Reasonable Standard of Care

The relevant standard of care shifts depending both on the nature of the defendant, and the nature of the activity being undertaken.

  • If a risk is more likely (Bolton v Stone [1951]), or more serious (in terms of the harm which may occur, Paris v Stepney Borough Council [1951]) then the standard of care is higher.
  • In ascertaining whether a defendant has acted reasonably, the courts will take into account whether preventative measures could have been taken, and the cost of such measures (Latimer v AEC [1953]).
  • The courts will apply a lesser standard of care to socially valuable activities, and visa-versa (Watt v Hertfordshire County Council [1954]).

Proving Breach

The claimant bears the burden of showing that the defendant breached the applicable standard of care, on the balance of probabilities.

  • A claimant can argue res Ipsa Loquitor, or ‘the facts speak for themselves,’ which refers to where the claimant cannot directly show that the defendant factually acted in a negligent manner, but where it is more likely than not that they did (Scott v London & St Katherine Docks Co [1865]).

    This claim requires that the defendant had control over the thing that caused the harm, that the cause of the accident is unknown, and that the injurious event is not one which would normally occur without negligence. If successful, the claim raises a rebuttable presumption of negligence against the defendant.
  • A claimant can use a defendant’s criminal conviction as proof that an act of negligence occurred (section 11 of the Civil Evidence Act 1968).

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