Chapter 1 - Negligence: Duty of Care
28 September 2025 19:51
The claimant must show that the defendant owes them a duty of care.
• This may be a duty already established by case law, e.g. doctors owe their patients a
duty of care.
• If the duty is not already established, this is a novel situation, and the claimant must
apply the three-part test in Caparo v Dickman to show that a duty is owed:
1. Reasonable foresight of harm to the claimant.
2. Sufficient proximity of relationship between the claimant and the defendant.
3. It must be fair, just and reasonable to impose a duty.
If one limb fails, there is no need to consider any subsequent limb - the court will not
continue as the test fails as soon as a limb fails in the respective order, even if it’s the first
limb.
When considering the application of Caparo, the court will also consider policy
considerations when determining reasonability - ie it would be unfair to impose a duty on a
charity.
• Generally, there is no duty to act (omissions). However, there are exceptions,
including:
○ A duty not to make the situation worse.
○ A duty to act positively where a person has power or control over another
person or object.
• Police generally don’t owe a duty of care to individuals however duty may arise if they
assume reasonability ie being negligent in passing information in relation to an inmate
who is diagnosed with depression and subsequently commits suicide while in custody
• No duty - claimant’s damage was caused by the defendants’ failure to act and the
defendants had no control over the third party (vandals)
Tort Page 1
,Chapter 2: Breach of Duty
28 September 2025 19:56
2.1 Introduction
To be liable in negligence, the defendant must:
1. Owe a duty of care; and
2. Be in breach of that duty.
Breach = the defendant falls below the required legal standard of care.
Example: A driver owes a duty to other road users. Breach occurs if they drive carelessly,
e.g. too fast. No breach if the driver suddenly becomes incapacitated without warning.
Breach of duty is decided by the judge and involves two stages:
1. What standard of care should have been exercised (question of law).
2. Did the defendant’s conduct fall below that standard (question of fact).
2.2 The Standard of Care
• Defendant’s conduct is measured against the required standard of care.
• Blyth v Birmingham Waterworks (1856): negligence is “the omission to do something
which a reasonable man would do, or doing something which a prudent and
reasonable man would not do.”
• Defendant must take as much care as a reasonable person would take.
The Nature of the ‘Reasonable Person’ Test
• The “reasonable person” = average person (neither unusually intelligent nor careless).
• Test is objective and impersonal:
○ Focus is not on what this defendant foresaw, but what a reasonable person
would foresee.
○ It is not about whether the defendant “did their best”, but whether their conduct
met the reasonable standard.
• Example:
○ A driver who suffers an unexpected heart attack or sudden illness is not in
breach, as a reasonable driver unaware of such a condition would not foresee it.
○ A driver aware of a medical condition but still driving could be liable.
• Courts may modify the reasonable person test for certain defendants (skilled persons,
learners, children).
Special Standards: The Skilled Defendant
• Bolam v Friern Hospital Management Committee (1957):
○ A doctor must show the degree of skill expected of a reasonable doctor.
○ Not negligent if actions are supported by a responsible body of professional
opinion.
• The Bolam test applies to anyone exercising a special skill, not only doctors.
• The court, not the profession, decides if that opinion is reasonable (Bolitho v City and
Hackney HA [1997]).
○ If the professional opinion cannot withstand logical analysis, the defendant may
still be found in breach.
• Summary:
○ Skilled defendants judged by the standard of a competent professional in that
field.
○ Court retains the final say on reasonableness.
Tort Page 2
,Special Standards: The Under-Skilled Defendant
• Nettleship v Weston (1971): learner driver owed the same standard of care as a
competent driver.
○ Objective standard; no allowance for inexperience.
○ Justified partly because all drivers are insured.
• Wilsher v Essex Area Health Authority (1987):
○ Junior doctors must meet the standard of a competent doctor in the same post.
○ Patients’ expectations should not vary based on doctor’s experience.
• Wells v Cooper (1958):
○ A householder doing DIY judged by the standard of a reasonably competent
amateur.
○ If an amateur attempts professional work beyond their skill, this is likely
negligent.
• Summary:
○ Standard of care = objective.
○ Tailored to the task, not to the individual’s experience.
○ Those presenting themselves as specialists must meet the higher professional
standard.
Special Standards: Children
• Mullin v Richards (1998):
○ Standard adjusted for the child’s age.
○ The question: would a reasonable child of the same age have foreseen the risk?
○ 15-year-old defendant not in breach during a mock ruler fight — risk not
foreseeable for that age.
• Younger children less likely to be found negligent (limited ability to foresee harm).
• Children can only sue or be sued through an adult representative (litigation friend).
• Practical issue: whether it is worthwhile suing a child with no means to pay damages.
2.3 Relevant Factors in Determining Whether Defendant Has Achieved the Required
Standard
• Defendant’s conduct measured against the reasonable person standard.
• Court weighs:
1. The risk created by the defendant’s activity; and
2. The precautions that could reasonably have been taken.
• Factors that guide courts in assessing breach include:
○ Magnitude of the risk (likelihood and seriousness of harm).
○ Practicality and cost of precautions.
○ Social utility of the activity.
○ Common practice and foreseeability.
Magnitude of the Risk
(1) Likelihood of Injury
• The greater the likelihood of injury, the more precautions must be taken.
• Bolton v Stone (1951):
○ Cricket ball cleared boundary fence only 6 times in 30 years; accident foreseeable
but very unlikely.
○ No breach — reasonable to ignore such a small risk.
• Risk must be reasonable probability, not a fantastic possibility (Fardon v Harcourt-
Rivington [1932]).
○ Example: dog breaking car window → passer-by injured — too remote.
• However, rare events can still be reasonable possibilities (Carmarthenshire CC v Lewis
Tort Page 3
, • However, rare events can still be reasonable possibilities (Carmarthenshire CC v Lewis
[1955]) — e.g. child strays from playground causing fatal crash.
(2) Risk of Greater Injury
• The more serious the potential injury, the greater care must be taken.
• Paris v Stepney Borough Council (1951):
○ Worker blind in one eye not given goggles → injury to good eye → total
blindness.
○ Defendant in breach — knew of claimant’s vulnerability and risk of serious harm.
Practicality of Taking Precautions
• The court weighs cost and difficulty of precautions against the risk of harm.
• Latimer v AEC Ltd (1953):
○ Factory floor slippery after flood; sawdust spread but employee slipped.
○ No breach — reasonable steps were taken; closing the factory would be
disproportionate.
• The defendant is not expected to eliminate all risk, only to take reasonable
precautions.
Social Utility of Defendant’s Conduct
• The social value or benefit of an activity can justify taking greater risks.
• Watt v Hertfordshire CC (1954):
○ Fireman injured by unsecured jack while responding to emergency.
○ No breach — risk justified by the urgent public benefit of saving life.
• Daborn v Bath Tramways (1946):
○ Ambulance with left-hand drive during wartime lacked signals; accident
occurred.
○ No breach — wartime emergency justified continued use.
• However, social utility does not excuse careless execution of the task.
Common Practice
• The fact that an action conforms to common practice may support reasonableness,
but is not conclusive.
• Brown v Rolls Royce (1960):
○ Employer did not provide barrier cream; most employers didn’t either.
○ No breach — employer had adequate washing facilities, so reasonable care
taken.
• Re Herald of Free Enterprise (1987):
○ Ferry sailed with bow doors open; this was “common practice.”
○ Still negligent — a practice can be careless and unsafe.
• Courts may consider industry standards, but retain the final say on reasonableness.
Foreseeability and Precautions
• A defendant is only required to guard against foreseeable risks.
• Roe v Minister of Health (1954):
○ Anaesthetic contaminated through invisible cracks in glass ampoules; risk
unknown at the time.
○ No breach — could not foresee risk with existing knowledge.
• Knowledge available at the time of the event, not hindsight, determines
foreseeability.
2.4 Proving Breach of Duty
• Burden of proof: claimant must prove, on the balance of probabilities, that the
defendant was in breach.
Tort Page 4
28 September 2025 19:51
The claimant must show that the defendant owes them a duty of care.
• This may be a duty already established by case law, e.g. doctors owe their patients a
duty of care.
• If the duty is not already established, this is a novel situation, and the claimant must
apply the three-part test in Caparo v Dickman to show that a duty is owed:
1. Reasonable foresight of harm to the claimant.
2. Sufficient proximity of relationship between the claimant and the defendant.
3. It must be fair, just and reasonable to impose a duty.
If one limb fails, there is no need to consider any subsequent limb - the court will not
continue as the test fails as soon as a limb fails in the respective order, even if it’s the first
limb.
When considering the application of Caparo, the court will also consider policy
considerations when determining reasonability - ie it would be unfair to impose a duty on a
charity.
• Generally, there is no duty to act (omissions). However, there are exceptions,
including:
○ A duty not to make the situation worse.
○ A duty to act positively where a person has power or control over another
person or object.
• Police generally don’t owe a duty of care to individuals however duty may arise if they
assume reasonability ie being negligent in passing information in relation to an inmate
who is diagnosed with depression and subsequently commits suicide while in custody
• No duty - claimant’s damage was caused by the defendants’ failure to act and the
defendants had no control over the third party (vandals)
Tort Page 1
,Chapter 2: Breach of Duty
28 September 2025 19:56
2.1 Introduction
To be liable in negligence, the defendant must:
1. Owe a duty of care; and
2. Be in breach of that duty.
Breach = the defendant falls below the required legal standard of care.
Example: A driver owes a duty to other road users. Breach occurs if they drive carelessly,
e.g. too fast. No breach if the driver suddenly becomes incapacitated without warning.
Breach of duty is decided by the judge and involves two stages:
1. What standard of care should have been exercised (question of law).
2. Did the defendant’s conduct fall below that standard (question of fact).
2.2 The Standard of Care
• Defendant’s conduct is measured against the required standard of care.
• Blyth v Birmingham Waterworks (1856): negligence is “the omission to do something
which a reasonable man would do, or doing something which a prudent and
reasonable man would not do.”
• Defendant must take as much care as a reasonable person would take.
The Nature of the ‘Reasonable Person’ Test
• The “reasonable person” = average person (neither unusually intelligent nor careless).
• Test is objective and impersonal:
○ Focus is not on what this defendant foresaw, but what a reasonable person
would foresee.
○ It is not about whether the defendant “did their best”, but whether their conduct
met the reasonable standard.
• Example:
○ A driver who suffers an unexpected heart attack or sudden illness is not in
breach, as a reasonable driver unaware of such a condition would not foresee it.
○ A driver aware of a medical condition but still driving could be liable.
• Courts may modify the reasonable person test for certain defendants (skilled persons,
learners, children).
Special Standards: The Skilled Defendant
• Bolam v Friern Hospital Management Committee (1957):
○ A doctor must show the degree of skill expected of a reasonable doctor.
○ Not negligent if actions are supported by a responsible body of professional
opinion.
• The Bolam test applies to anyone exercising a special skill, not only doctors.
• The court, not the profession, decides if that opinion is reasonable (Bolitho v City and
Hackney HA [1997]).
○ If the professional opinion cannot withstand logical analysis, the defendant may
still be found in breach.
• Summary:
○ Skilled defendants judged by the standard of a competent professional in that
field.
○ Court retains the final say on reasonableness.
Tort Page 2
,Special Standards: The Under-Skilled Defendant
• Nettleship v Weston (1971): learner driver owed the same standard of care as a
competent driver.
○ Objective standard; no allowance for inexperience.
○ Justified partly because all drivers are insured.
• Wilsher v Essex Area Health Authority (1987):
○ Junior doctors must meet the standard of a competent doctor in the same post.
○ Patients’ expectations should not vary based on doctor’s experience.
• Wells v Cooper (1958):
○ A householder doing DIY judged by the standard of a reasonably competent
amateur.
○ If an amateur attempts professional work beyond their skill, this is likely
negligent.
• Summary:
○ Standard of care = objective.
○ Tailored to the task, not to the individual’s experience.
○ Those presenting themselves as specialists must meet the higher professional
standard.
Special Standards: Children
• Mullin v Richards (1998):
○ Standard adjusted for the child’s age.
○ The question: would a reasonable child of the same age have foreseen the risk?
○ 15-year-old defendant not in breach during a mock ruler fight — risk not
foreseeable for that age.
• Younger children less likely to be found negligent (limited ability to foresee harm).
• Children can only sue or be sued through an adult representative (litigation friend).
• Practical issue: whether it is worthwhile suing a child with no means to pay damages.
2.3 Relevant Factors in Determining Whether Defendant Has Achieved the Required
Standard
• Defendant’s conduct measured against the reasonable person standard.
• Court weighs:
1. The risk created by the defendant’s activity; and
2. The precautions that could reasonably have been taken.
• Factors that guide courts in assessing breach include:
○ Magnitude of the risk (likelihood and seriousness of harm).
○ Practicality and cost of precautions.
○ Social utility of the activity.
○ Common practice and foreseeability.
Magnitude of the Risk
(1) Likelihood of Injury
• The greater the likelihood of injury, the more precautions must be taken.
• Bolton v Stone (1951):
○ Cricket ball cleared boundary fence only 6 times in 30 years; accident foreseeable
but very unlikely.
○ No breach — reasonable to ignore such a small risk.
• Risk must be reasonable probability, not a fantastic possibility (Fardon v Harcourt-
Rivington [1932]).
○ Example: dog breaking car window → passer-by injured — too remote.
• However, rare events can still be reasonable possibilities (Carmarthenshire CC v Lewis
Tort Page 3
, • However, rare events can still be reasonable possibilities (Carmarthenshire CC v Lewis
[1955]) — e.g. child strays from playground causing fatal crash.
(2) Risk of Greater Injury
• The more serious the potential injury, the greater care must be taken.
• Paris v Stepney Borough Council (1951):
○ Worker blind in one eye not given goggles → injury to good eye → total
blindness.
○ Defendant in breach — knew of claimant’s vulnerability and risk of serious harm.
Practicality of Taking Precautions
• The court weighs cost and difficulty of precautions against the risk of harm.
• Latimer v AEC Ltd (1953):
○ Factory floor slippery after flood; sawdust spread but employee slipped.
○ No breach — reasonable steps were taken; closing the factory would be
disproportionate.
• The defendant is not expected to eliminate all risk, only to take reasonable
precautions.
Social Utility of Defendant’s Conduct
• The social value or benefit of an activity can justify taking greater risks.
• Watt v Hertfordshire CC (1954):
○ Fireman injured by unsecured jack while responding to emergency.
○ No breach — risk justified by the urgent public benefit of saving life.
• Daborn v Bath Tramways (1946):
○ Ambulance with left-hand drive during wartime lacked signals; accident
occurred.
○ No breach — wartime emergency justified continued use.
• However, social utility does not excuse careless execution of the task.
Common Practice
• The fact that an action conforms to common practice may support reasonableness,
but is not conclusive.
• Brown v Rolls Royce (1960):
○ Employer did not provide barrier cream; most employers didn’t either.
○ No breach — employer had adequate washing facilities, so reasonable care
taken.
• Re Herald of Free Enterprise (1987):
○ Ferry sailed with bow doors open; this was “common practice.”
○ Still negligent — a practice can be careless and unsafe.
• Courts may consider industry standards, but retain the final say on reasonableness.
Foreseeability and Precautions
• A defendant is only required to guard against foreseeable risks.
• Roe v Minister of Health (1954):
○ Anaesthetic contaminated through invisible cracks in glass ampoules; risk
unknown at the time.
○ No breach — could not foresee risk with existing knowledge.
• Knowledge available at the time of the event, not hindsight, determines
foreseeability.
2.4 Proving Breach of Duty
• Burden of proof: claimant must prove, on the balance of probabilities, that the
defendant was in breach.
Tort Page 4
