Breach of the duty of care
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To succeed in a claim for Negligence, the claimant must establish that he was owed a Duty of care, and that the defendant was in breach of that duty. Whether a breach occurred is a question of fact to be established on the evidence, but the standard of care expected is a matter or law.
Standard of the duty of care
The general principle in English law is that standard of care is entirely objective. The defendant is measured against the standard expected by society for the task in which he was engaged. Many human activities carry an element of risk, and it is not necessarily the case that one person must never expose another to a forseeable risk. For example, in bolton v stone (1951), the claimant was struck by a cricket ball from the defendant's pitch. Although the risk was forseeable, the test was held to be what a reasonable cricket club would have done. In this case, the risk of injury was judged to be so slight, that no reasonable club could have been expected to protect against it. In latimer v aec (1953), the defendant was injured when he slipped on a floor contiminated by oil in his employer's factory. The claimant suggested that the risk was forseeable, and that the employer should have closed the factory until the risk was abated. However, it was held that the standard of care was that of the reasonable employer; in the circumstances the risk was so small that no reasonable employer could have been expected to close the factory.
The objectivity of the standard of care means, in practice, that if a person holds himself out as possessing a certain skill, or carries out activities that represent him as having that skill, then he must display a level of competence associated with that skill. Cases that illustrate this point include wells v cooper (1958) (DIY home repairs must meet the standard of a reasonably competent tradesman) andchaudhry v prabhakar (1989) (informal advice on car buying must be as good as a reasonable competent car trader).
To many people this principle seems harsh. The implaccability of the courts in this respect is well demonstrated by the case of Nettleship v weston (1971). In that case, the Court of Appeal held that a learner driver who caused a road accident should be judged against the same standards as a qualified driver. The courts have not taken this decision to its logical conclusion and, for example, held that a child be expected to display the same degree of foresight as an adult. It has been argued that those who consider this priniple harsh are confusing 'blameworthiness' with 'culpability'. No-one is suggesting that Mrs Weston was personally blameworthy for the accident but, nevertheless, she did cause it. The law of negligence, on the whole, is concerned with who should foot the bill and, in a two-party case like Nettleship, it is clear where that responsibility falls.
Determination of whether the duty was discharged
In general, the motive of the defendant is irrelevant to the determination whether he breached the duty of care, as are his own personal qualities. The determination is made by comparing the defendant's behaviour with what would reasonably be expected to meet the standard of care required by law. Whether the defendant adequately discharged is duty is a question of fact, something often forgotten by the courts, and something for which we should lament the passing of jury trials for negligence. The factual nature of the determination was the subject of the House of lords decision in QualcastVHaynes1959, where the judge at first instance, and the Court of Appeal held themselves bound by authority to reach an absurd decision. The House stressed that whether the defendant is in breach is somethat to be determined as a matter of common sense, not by reference to precedent.
Particular problems arise in cases where the defendant is an expert in some particular field. In medical cases, for example, a doctor's judgement will be measured against the standards of the profession as a whole. It does not matter that there is a body of opinion, even perhaps a substantial body, that would not have come to the same conclusion (Bolam v friern hospital management committee (1957)). However, the existence of expert testimony does not prevent the determination of whether the defendant was in breach or not being a legal matter (BolithoVCityAndHackneyHA1998); It is -- in principle -- open to the court to hold the defendant liable, in the face of expert evidence to suggest that he did what would have been expected of him by the profession.