Introduction to Breach of Duty
Once it has been established that a defendant owes a duty of care to a claimant, the court must then decide if the defendant actually did something wrong. This is known as the breach of duty. In simple terms, we are asking: "Did the defendant's behavior fall below the standard expected of them?"
Don't worry if this seems a bit abstract at first. Think of it like a driving test. To pass, you have to drive to a certain standard. If you drive worse than that, you fail. In the law of tort, if a defendant "fails the test" of being careful enough, they have breached their duty.
The Standard of Care: The "Reasonable Person"
The law does not expect people to be perfect, but it does expect them to be reasonable. This is an objective test. This means the court does not look at what the specific defendant was thinking or whether they were "doing their best." Instead, the court compares the defendant to an imaginary reasonable person.
The Objective Test: It doesn't matter if a person is naturally clumsy or forgetful. The law asks: "Would a person of reasonable firmness and care have acted the same way in this situation?"
Quick Tip: Remember that "objective" means looking from the outside in (the standard of society), whereas "subjective" would mean looking from the inside out (the defendant's personal feelings). For breach of duty, we use the objective standard.
Different Classes of Defendant
While the standard is usually that of the "reasonable person," the law adjusts this standard for certain groups of people. This is a very important part of your Paper 4 exam!
1. Professionals and Experts
When a defendant has a special skill or profession (like a doctor, lawyer, or electrician), the "average person on the street" is not a fair comparison. Instead, the law compares them to a reasonable professional in that same field.
Example: A surgeon is judged by the standard of a reasonable, competent surgeon. If they follow a practice that is accepted by a responsible body of medical professionals, they are unlikely to have breached their duty, even if something goes wrong.
2. Children
The law recognizes that children do not have the same judgment or experience as adults. Therefore, a child is compared to a reasonable child of the same age.
Example: If a 10-year-old throws a ball and accidentally breaks a window, the court asks if a 10-year-old acting reasonably would have realized the risk. This is a much lower standard than what we would expect from a 30-year-old.
3. Learners and Amateurs
This is a "tricky" area for many students. You might think a learner driver should be judged more leniently, but the law says no. To protect the public, a learner must meet the standard of a competent, qualified person.
Example: A learner driver is expected to drive as safely as someone who has had their license for years. If they crash because they are inexperienced, they have still breached their duty because they fell below the standard of a "competent driver."
Factors the Court Considers (Risk Factors)
To decide what a "reasonable person" would have done, the courts look at several factors. You can think of these as a balancing act.
A. The Likelihood of Harm: If the risk of an accident is very small, a reasonable person might not take many precautions. If the risk is high, they must do more.
Example: If a cricket ball is hit out of a stadium once every 30 years, the risk is so low that the club might not need to build a massive fence.
B. The Seriousness of Potential Injury: If the potential injury is very severe, the defendant must take extra care.
Example: If an employee only has one good eye, the employer must take extra care to provide safety goggles, because the "gravity of harm" (total blindness) is much higher than for someone with two working eyes.
C. The Cost and Practicality of Precautions: The law doesn't expect defendants to spend millions of dollars to prevent a tiny risk. If the cost of the precaution is much higher than the risk itself, the defendant may not be in breach.
Example: If a factory floor becomes slippery after a flood, and the owner puts down sawdust and warning signs, they might not be in breach even if someone still slips. Closing the entire factory (which is very expensive) might be seen as an unnecessary precaution for a small risk.
D. Social Utility (The Benefit of the Activity): If the defendant was doing something very important for society (like an emergency service), the court may be more forgiving of risks.
Example: An ambulance driver might take certain risks (like speeding) that a normal driver cannot, because saving a life has high social value.
Key Takeaways for Revision
Standard of Care: Always starts with the objective reasonable person test.
Professionals: Judged by the standard of their profession.
Children: Judged by the standard of a child of their age.
Learners: Judged by the standard of a competent, experienced person.
The Balancing Test: The court weighs the likelihood and severity of harm against the cost of precautions and the social benefit of the activity.
Quick Review Question:
If a person is learning to knit and accidentally pokes a friend with a needle, will the court judge them as a "beginner" or as a "competent knitter"?
Answer: Generally, in English law, once you undertake a task that requires a skill, you are expected to meet the standard of a reasonably competent person performing that task. In negligence, there is usually no "learner's allowance" for the standard of care!