Breach of duty in negligence liability Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care 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 in negligence liability is decided by the objective test ie the defendant is expected to meet the standard of a reasonable person:
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: If the defendant is a professional they will be held to the standard of a reasonable person within that profession. This applies also to trainees: Likewise, a learner driver is expected to meet the same standard as a reasonable competent qualified driver, otherwise be found in breach of duty: 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:
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:
A child is not expected to meet the standard of a reasonable adult, but will be judged by the standard of a reasonable child of the same age: The courts have not taken a consistent approach in relation to where the defendant's conduct is affected by illness. Compare the cases:
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: See also: 2. Seriousness of harm: 3. Cost of prevention: 4. Utility of the defendant's conduct What happened in Blyth v Birmingham Waterworks?The court found that the severe frost could not have been in the contemplation of the Water Works. They could only have been negligent if they had failed to do what a reasonable person would do in the circumstances.
How was negligence defined in Blyth v Birmingham Waterworks Co?This case established the original definition of negligence as 'the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not'. Share by Email.
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