Negligence — breach & standard of care

TOR.02 — Negligence: Breach & Standard of Care

Breach is the second element of negligence (after duty, before causation/remoteness). Two questions: (1) what standard did the defendant owe? (2) did the conduct fall below it?

The standard: objective

The defendant is measured against the reasonable person — Blyth v Birmingham Waterworks (1856). Personal characteristics, inexperience and best efforts are irrelevant.

• Skilled defendants: judged by the standard of the reasonably competent member of that profession/trade — Bolam v Friern HMC (1957): not negligent if acting in accordance with a responsible body of opinion. But that opinion must withstand logical scrutiny — Bolitho v City & Hackney HA (1997).
• Medical advice/consent: Bolam is displaced — the test is whether the patient was told of material risks (objective patient / reasonable patient in their position) — Montgomery v Lanarkshire HB (2015).
• Learners/novices: held to the standard of the competent qualified person — Nettleship v Weston (1971). No allowance for inexperience.
• Children: judged against a reasonable child of the same age — Mullin v Richards (1998).
• Emergencies/sport: standard adjusts to the circumstances (agony of the moment); sport requires reckless disregard, not mere error — Condon v Basi.

The breach calculus (foreseeable risk weighed against precautions)

• Likelihood of harm — Bolton v Stone (1951): low probability lowers the duty.
• Seriousness of harm — Paris v Stepney BC (1951): known vulnerability raises required care.
• Cost/practicability of precautions — Latimer v AEC (1953).
• Social utility of the activity — Watt v Hertfordshire CC (1954). Reinforced by Compensation Act 2006 s.1 and SARAH Act 2015 (courts may consider deterrent effect / social action, responsibility, heroism).
• Judge by knowledge at the time, not hindsight — Roe v Minister of Health (1954).

Common traps

• Breach is objective — strip out the defendant's good intentions, inexperience, illness (unless it deprived them of control).
• Bolam applies to diagnosis/treatment, not risk disclosure (use Montgomery).
• A responsible body can still be illogical (Bolitho) — it isn't a rubber stamp.
• Don't conflate breach with res ipsa loquitur — that shifts the evidential burden where the cause is unknown and within the defendant's control.
• Breach alone proves nothing — the claimant must still prove causation and loss.