FLK1 · Tort

Negligence — breach & standard of care

SQE1 revision notes — the key rules, leading cases and common traps for this topic, in plain English and current to 2026.

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.

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A man is a front-seat passenger in a car driven by a friend. The friend drives negligently and collides with another vehicle. The man was not wearing his seatbelt. Medical evidence establishes that had he worn the seatbelt his injuries would have been substantially less severe, though he would still have suffered some injury from the impact. The man sues his friend in negligence. Liability for the collision is admitted. The defendant argues that the man's damages should be reduced because of his failure to wear a seatbelt.

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