Breach of Duty in Negligence: the Fault Stage

The question at the fault stage is whether the defendant exposed others to risks of injury to person or property that a reasonable person would not have exposed them to. Where the defendant has exposed others to risks of damage that a reasonable person would not have exposed them to, we say that the defendant's conduct fell below the standard of the reasonable person.

So, the core idea of negligence (in the sense of fault) means falling below a standard of conduct — the standard of the reasonable person.

Three things follow from this meaning of negligence. First, the fault inquiry compares the defendant's conduct against the hypothetical reasonable person's conduct. So, the fault stage is an assessment of the defendant's actions; it is not an assessment of the defendant's state of mind. The question is not whether the defendant is morally culpable, nor whether the defendant deserves censure, but simply whether the defendant should have acted differently.

Second, the defendant's conduct may be negligent/faulty even if the conduct is intentional. In these cases the claimant will usually have another cause of action as well. Still, there is nothing to stop the claimant from suing in negligence. So, negligence is not the same as carelessness, though carelessness might, of course, be negligence.

Third, there are two stages to the fault enquiry. First comes a question of law: the setting of the standard against which the defendant's conduct will be assessed. Second comes a question of fact: the application of the standard to the defendant's conduct.

It is more accurate and less confusing to call this the fault stage. This stage asks whether the conduct of the defendant fell below the standard of a reasonable person. As the definition of a wrong is the breach of a duty, naming this stage the 'breach of duty' stage implies that merely falling below the standard of the reasonable person is wrongful. However, the wrong is not the negligent conduct itself; the wrong only happens when the claimant suffers damage resulting from the negligent conduct. Nolan argues that this confusion and misleading language flows from the idea that a duty of care is actually a duty. In contrast, Nolan argues that a duty of care is not actually a duty at all.

The objective standard of care

The standard of the reasonable person is an objective standard, so takes no account of the defendant's individual characteristics and qualities:

The objective standard of care eliminates the personal equation ...

          Glasgow Corpn v Muir [1943] 2 All ER 44, 48 (Lord Macmillan)

In Nettleship v Weston the Court of Appeal applied the general standard of a reasonably competent driver to a learner driver. The following case is a striking example of the objective standard.

          Dunnage v Randall [2015] EWCA Civ 673, [2016] QB 639

The Court of Appeal refused to take the defendant's mental illness into account. The defendant was a paranoid schizophrenic who poured petrol over himself and ignited it, causing personal injury to his nephew, who was trying to prevent his uncle, the defendant, from setting himself on fire. Liability was imposed on the estate of the paranoid schizophrenic.

(i) Arguments of principle for the objective standard

Rights theorist defend the objective standard with arguments of principle. Their view is that the rights that the law of negligence protects would be too weak and too contingent if they depended on the defendant's specific characteristics.

The external exercise of freedom depends on sufficient security against interferences by others with one's person and property ... Using a subjective perspective to determine the negligence of defendants would make such security impossible, since the risks to which one could permissibly be exposed by others would depend on the subjective capacities of the particular others with whom one happens (often unpredictably) to interact.

          Wright, The Standards of Care in Negligence Law in Owen (ed) Philosophical Foundations of Tort Law (1995) 258-259

(ii) Pragmatic arguments for the objective standard

The pragmatic view is that we need an objective standard of care to have a right that will actually protect the interests it means to protect. Moreover, a subjective standard would also make negligence litigation much more complicated as the court would have to consider the defendant's personal characteristics first.

While it could be argued that the standard should be modified a little bit, this could also lead to difficulties. There is a slippery slope problem: say the court in Nettleship v Weston changed the standard to consider the fact that the driver was a learner driver. Learner drivers falling below the benchmark would argue that their extra inexperience should also be considered, ad infinitum, as all learner drivers' experiences are equally different. Moreover, in the case of the paranoid schizophrenic, the standard would completely lose coherence if subjectivity was allowed. It is entirely incoherent to try and create a standard of a reasonable paranoid schizophrenic. So, there is no alternative but to impose an objective standard.

The certainty of a general standard is preferable to the vagaries of a fluctuating standard.

          Nettleship v Weston [1971] 2 QB 691, 708 (Megaw LJ)

Variations in the standard of care

Child defendants

          Mullin v Richards [1998] 1 WLR 1304

The Court of Appeal held that where the defendant is a child, the standard is that of an ordinarily prudent and reasonable child of the defendant's age. That particular variation in the standard of care can be justified because age is a concrete and easily discernible characteristic of the defendant. So, it is practical to adapt the standard of care to take account of age.

It is more difficult to justify this departure using the arguments of principle. But it could be argued that since children are obviously children, you can take precautions when near children if you are worried about a child negligently injuring you. Whereas it might not be immediately evident that someone has a mental illness, and you cant mitigate the risk of injury by a paranoid schizophrenic in the same way as in children. It could also be argued that as children have fewer rights than adults, they can have fewer responsibilities.

(ii) Specialist defendants (assumption of responsibility)

In a case involving an allegation of negligence against a person … who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the person acted with due care is … to be determined by reference to … what could reasonably be expected of a person possessing that skill ...

          Wrongs Act 1958 (Vic) s 58

This is an Australian legislative provision but is a perfect articulation of the English common law's position on the standard of care to impose on specialist defendants.

          Phillips v William Whiteley [1938] 1 All ER 566

A woman developed an abscess after having her ears pierced at the defendant's jewellery store. The claimant could not establish negligence as the defendant's conduct did not fall below the standard of a reasonable jeweller. It did not matter that a reasonable surgeon would have taken additional precautions; the jeweller had not held themselves out as a surgeon.

The explanation here seems to be that where the defendant's duty is based on an assumption of responsibility, which it is in these sorts of cases, the content of the duty is also fixed by reference to the responsibility that has been assumed. This assumption of responsibility explanation also explains why it is the skill that you hold yourself out as having rather than the skill you actually have that determines the standard of care you must meet.

Omissions cases

In pure omissions cases, the courts take a more subjective view of the standard of care than usual. This is inevitable. Take the example of someone wheelchair-bound and the case of the child drowning in a shallow pool of water. We evidently have to take account of the defendant's characteristics. The person in the wheelchair is clearly unable to save the child.

Goldman v Hargrave [1967] 1 AC 645

Occupiers of land come under a positive duty to protect neighbours against dangers arising naturally on their land. Here the court held that such occupiers are only obliged to do only what is reasonable to expect of them in their individual circumstances. This way, the court can take account of the defendant's physical characteristics and resources.

          Nolan, Varying the Standard of Care in Negligence [2013] CLJ 651

In this article, Nolan explores in more detail cases like Goldman v Hargrave and others, where the standard of care is varied.

          Leakey v National Trust [1980] QB 485

Application of the standard of care

Any finding of negligence requires the court to decide either that the defendant has done something they should have done or not done something that they should have done. It is helpful to remember this point when answering a problem question that raises questions of fault/breach of duty. It will help structure the answer. The next question is whether it was unreasonable for the defendant to have acted in the way they acted or unreasonable to have not acted in how the claimant said they should have acted.

No conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done.

          Metropolitan Gas Co v Melbourne Corp (1924) 35 CLR 186, 194 (Isaacs ACJ)

One way to answer the question is by applying the test laid down by Learned Hand. Yes, that's his real name.

If the probability be called P; the injury L; and the burden [of precautions necessary to eliminate the risk], B; liability depends on whether B is less than L multiplied by P; i.e. whether B < PL.

          United States v Carroll Towing 159 F 2d 169 (2nd Cir, 1947) 173 (Learned Hand J)

It is common sense that courts do take into account these three factors when deciding whether the defendant acted reasonably. Nonetheless, there are four objections to merely balancing these factors against each other to judge reasonableness.

First, the formula implies that this question can be answered with some kind of mathematical precision. However, the formula requires the balancing of incommensurables, so there cannot be this mathematical precision. For example, in Latimer v AEC, the court would have to balance the risk of personal injury to a factory worker with the cost of closing a factory because a flood made the floor slippery. This would require the balancing of incommensurables.

Second, when it comes to the cost of precautions, the formula makes no distinction between the social cost of a precaution, the cost to society as a whole, and the private cost of a precaution, the cost to the defendant. But if you look at the cases, courts make this distinction.

          Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333

The use of a left-hand drive ambulance was justified because of a wartime vehicle shortage, even though those following the ambulance might not be able to see the driver's hand signals. The social cost of not using left-hand ambulances was more significant than the increased risk of accidents. Daborn can be contrasted with the following case.

          Grimshaw v Ford Motors 119 Cal App 3d 757 (1981)

A car manufacturer had not been justified in locating petrol tanks in a relatively dangerous position in a vehicle simply to save money. The private cost of putting the petrol tanks in a safer place did not justify the risks that they were creating. These two cases show that social costs and private costs are treated differently, and the formula does not account for this.

Third, the Learned Hand formula does not consider other factors taken into account by courts when deciding whether the defendant acted reasonably. One example of a factor taken into account by courts is whether the defendant's conduct accorded with common practice.

Fourthly, the formula seems to assume a conscious choice by the defendant. Still, many instances of negligence happen inadvertently, e.g. failing to check a mirror before changing lane. It seems inappropriate to use the formula for these cases where no conscious choice was made.

          Stevens, Torts and Rights (2007) 92-97

So the learned hand formula may be a useful starting point. Nevertheless, the courts consider all relevant factors when deciding whether a defendant acted reasonably. These factors often go beyond the formula.

The appropriate perspective

When asking whether the defendant acted reasonably, we have to consider the situation from the point of view of a reasonable person standing in the defendant's shoes at the time of the alleged breach of duty and looking forward without taking into account what we now know in hindsight.

For example, it follows in medical negligence cases that the standard of care is applied in the light of medical knowledge at the time of the alleged breach.

We must not look at the 1947 accident with 1954 spectacles.

          Roe v Ministry of Health [1954] 2 QB 66, 84 (Denning LJ)

A toxic storage solution leaked into a glass ampule containing anaesthetic through invisible cracks in the glass. The Court of Appeal held that there was no negligence because the existence of these invisible cracks only came to light after this incident took place. This incident alerted people to the risk of this happening. At the time, it was not known that this was possible, so there was no negligence.

Professional defendants: the Bolam test

Particular principles govern the application of the standard of care when it comes to professional defendants like lawyers, doctors, and accountants. Under the Bolam test:

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... [even if] there is a body of opinion that takes a contrary view.

          Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, 587 (McNair J)

While this quotation mentions doctors in particular, the test applies to all professional defendants in negligence.

          Bolitho v City & Hackney HA [1998] AC 232

This is an important subsequent decision of the House of Lords on the Bolam test. In this case, the House of Lords emphasised the requirement that the relevant body of opinion is responsible. That meant that the practice in question had to be capable of withstanding logical analysis.

Bolam test is controversial. Some see it as a way of protecting or shielding professionals from excessive liability or what is regarded as excessive liability. For Nolan, the Bolam test is rooted in a problem of institutional competence. For judges generally lack the knowledge and understanding to choose between competing professional opinions produced by expert witnesses.

There are many contexts where judges have to choose between competing expert opinion, e.g. what the medical significance is of the claimant's injuries. But, judges are unwilling to choose between competing expert opinions when it comes to finding a professional negligent. An institutional competence problem is the best explanation for the Bolam test.

There is one exception to the application of the Bolam test. In Montgomery v Lanarkshire Health Board, the Supreme Court held that the Bolam test no longer applies in cases of medical nondisclosure of risk. Instead, a doctor is negligent if he fails to warn a patient of any material risk in the proposed treatment.

The doctor is … under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

          Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 [87] (Lord Kerr and Lord Reed)