Breach of Duty — SQE1 FLK1 Tort Law

A wet, dark evening. A road lined with parked cars outside a parade of shops. A driver is doing 35 miles an hour where the limit is 30. A woman steps out from between two parked vans. He cannot stop. Her leg is broken.

He has held a licence for thirty years without one accident, and he tells you that, given his experience, 35 was a safe speed for him. Is he in breach? Yes. And why he is in breach is why this whole topic exists. Nobody ever asked him what he thought was safe.

This is Breach of Duty, the second element of negligence and the second topic in Tort Law. Keep him with you. He comes back.

Here is the route. The standard of care first, and the reasonable person who sets it. Then the two places the standard bends, and the places it refuses to. Then professionals, where a different test takes over. Then the five factors the court actually weighs. Then proof, when nobody can say what went wrong. And finally, what a statute settles and what it does not.

Breach is element two. Duty, then breach, then causation and damage. Miss breach and the claim fails, however clear the duty and however real the injury. The claimant carries it, on the balance of probabilities. And the court's question is never what the defendant meant to do. It is what a reasonable person would have done in his position.

Here is the definition you apply. 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. Blyth v Birmingham Waterworks, 1856. Read it twice for what it does not say. It does not say perfect. It says reasonable.

So the standard is not the best possible care. It is what is reasonably practicable, not every conceivable precaution, because resources are limited and absolute safety is impossible. Hold on to that one. It comes back in every section.

Who is the reasonable person? An ordinary person of reasonable prudence. Not exceptionally cautious. Not careless. The court builds him as a legal fiction and measures everyone against him. He does not adjust to suit you. A clumsy defendant is judged by the standard of a reasonable person, not a clumsy one.

Try one. A woman with four driving lessons behind her panics at a roundabout, presses the accelerator instead of the brake, and breaks a cyclist's hip. Judged as a learner, or as a competent driver? A competent driver. Inexperience buys nothing, because other road users cannot inquire into the competence of the car coming towards them.

Same answer one rung up. A doctor a week out of qualification is judged by the post she occupies, not by her experience.

So when does the standard bend? Twice. First, children. A child defendant is measured against an ordinarily prudent and reasonable child of the same age. Two fifteen-year-old schoolgirls were fencing with plastic rulers when one snapped and a fragment blinded one of them in an eye. No breach. A reasonable fifteen-year-old would not have foreseen a significant risk of injury from that game.

And where the child is the claimant, the same age-based standard governs contributory negligence.

Second, an impairing condition the defendant neither knew of nor could reasonably have discovered. A lorry driver fell into a hypoglycaemic state he was unaware of, and there was an accident. Not negligent. He was judged as a reasonably competent driver unaware that he was suffering from a condition impairing his ability to drive.

Every word there is working, because the concession dies the moment you are on notice. Another driver had a stroke, carried on with some imperfect control, and was liable on the ordinary standard. And a defendant who knows about a disability must take it into account himself. By not driving at all, if he cannot drive safely.

Now the one the examiners love to blur. Mental incapacity is not an exception. There is no reasonable person of unsound mind. A defendant with a mental illness or a learning disability is judged by the ordinary reasonable person standard. He is excused only where the condition entirely eliminated his control, the way automatism would. The reason is blunt. Protect potential victims.

Professionals now, and a different test takes over. A doctor, a solicitor, a surveyor: each is judged by the standard of a reasonably competent professional in the same field. And the test is this. A professional is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Bolam v Friern Hospital Management Committee, 1957.

Notice what that does. It defers to the profession, and the supporting body need not be the majority view. Take a surgeon who keeps to an older technique that a substantial minority still use, and can justify it. Not in breach, even though most surgeons have moved on.

But it is not a rubber stamp. The judge is not bound to accept every body of professional opinion. It must be capable of withstanding logical analysis, and opinion with no rational basis can be rejected and negligence found anyway. Bolitho v City and Hackney Health Authority, 1998. The court keeps the gate.

Picture it working. Two experts say a body of surgeons gives no preventative antibiotics for this operation. Under cross-examination neither can point to a clinical reason for withholding them, against studies showing a high infection rate and a large reduction where they are given. That opinion is what a court may reject.

Then one place where Bolam does not apply at all. Telling a patient about risk. The Supreme Court held that a doctor must take reasonable care to ensure the patient is aware of any material risk in the proposed treatment. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it. Or if the doctor should reasonably be aware that this particular patient would. Montgomery v Lanarkshire Health Board, 2015.

Patient-centred, not doctor-centred. A surgeon says nothing about a one in two hundred risk of stroke, because his practice is to mention only risks above one in a hundred. He knows she lives alone and is anxious about anything affecting her independence. She has the surgery and suffers a stroke. Breach, on both limbs.

There is no percentage threshold of materiality. So make the switch automatic. A doctor's choice of treatment, and a doctor's failure to warn. Which test for which? Choice of treatment, Bolam and Bolitho. Failure to warn, Montgomery. And one calibration: a jeweller piercing ears is judged as a competent jeweller, not a surgeon.

Now the part that decides most breach questions. The balancing exercise. Five factors: how likely the harm was, how serious it would be, what precautions would cost, how practical they were, and what social value the activity had. Then one question. Does the magnitude of the risk outweigh the burden of eliminating it?

Start with likelihood. A cricket club had played on the same ground for over thirty years, with a fence between the pitch and a quiet adjoining lane. In all that time a ball had cleared it about half a dozen times, and nobody was ever hurt. Then one unusually powerful strike, a woman walking in the lane, a broken arm. No breach. Bolton v Stone, 1951.

Foreseeable is not the same as actionable. It was foreseeable that a ball might clear the fence. One did. It hit her. But the risk was so small that a reasonable club would not have built a higher fence or stopped playing.

Now change one fact and watch it flip. A workshop employs a man who, to the employer's knowledge, has sight in only one eye. His duties include occasional grinding work carrying a small risk of fragments flying up. No goggles are issued, and never have been, not even for the workers who can see with both eyes. A fragment strikes his one good eye. He is completely blind. Breach. Paris v Stepney Borough Council, 1951.

Two cases from the same year. Both with a small chance of harm. Opposite results, because likelihood is only half of magnitude. The other half is gravity. Where the defendant knows this claimant is unusually vulnerable, more is required. Here, more meant a pair of goggles.

Third, cost and practicality. A factory floor was left dangerously slippery by a flood. The occupier put down sawdust and warning signs but did not shut the factory. Not negligent. Shutting down would have been out of all proportion to the risk. The law does not make you buy zero risk at any price.

But turn it round. Where the precaution is cheap and simple, failing to take it is far more likely to be a breach. Goggles, again.

Fourth, utility. An ambulance answering a cardiac arrest crosses a red light, having slowed almost to a stop and checked that the traffic had seen it. A man steps out from behind a stationary bus and breaks his leg. Not a breach. That crossing would be plainly careless with no emergency, but social value lets a greater risk be run.

Parliament has put part of this on a statutory footing. Under s.1 of the Compensation Act 2006, a court may have regard to whether requiring particular steps would prevent a desirable activity from being undertaken. Or discourage people from taking on functions connected with one. Under the Social Action, Responsibility and Heroism Act 2015 it must have regard to social action, to a responsible approach to safety, and to heroism in an emergency.

Neither lowers the standard. Neither hands anyone immunity. Both were already part of the common law balance.

Fifth, common practice, and this is a trap dressed as a defence. Following industry practice is evidence in your favour, but it is not conclusive. A court can find that an entire industry has been negligent in setting its own standards. A contractor built a retaining wall by the method local firms had used for years. Eighteen months later it collapsed onto the neighbour.

The industry had known for a decade the method was unsafe at that height, and a simple reinforcement would have prevented it. Everyone does it is not a complete defence. One caution the other way. Breach is judged on the knowledge available at the time, never with hindsight.

Which leaves proof. Sometimes the claimant cannot say what the defendant did wrong. Res ipsa loquitur, the thing speaks for itself, lets the court infer negligence from the circumstances. Three requirements. One, the event does not normally happen without negligence. Two, its cause was within the defendant's exclusive control. Three, the claimant did not contribute to it.

The paradigm is a surgical swab. A woman has an abdominal operation under general anaesthetic, and months later a scan finds a swab left inside her. Everything in that theatre was in the hospital's own hands, she was unconscious, and no explanation is offered. She need not name the careless member of staff.

Now watch it fail. A scaffolding pole falls from the third floor of a refurbishment and fractures a passer-by's collarbone. First requirement, satisfied. Poles do not normally fall. Second requirement, not satisfied. Four separate firms had access to that floor. No exclusive control, no inference against the main contractor alone.

Be precise about what the inference does. It shifts the evidential burden, nothing more. The defendant answers it with a plausible explanation of how the accident could have happened consistently with reasonable care, and need not prove the actual cause. The legal burden stays with the claimant throughout.

Last, statutes. Complying with a statutory standard is evidence that the defendant acted reasonably. It is not a defence. A warehouse kept no extinguishers in its packaging store because the fire regulations required them only where flammable liquids were kept. Fully compliant. Its own insurers had twice written recommending them. A fire, a badly burned firefighter, and compliance does not answer the claim.

It runs both ways. Breaching a statutory standard is evidence of negligence without being proof of it. And the statute must have been intended to protect the claimant's class against the type of harm suffered. The Highway Code is the neatest illustration. By s.38(7) of the Road Traffic Act 1988, failing to observe a provision of the Code does not of itself make you liable. But any party may rely on it as tending to establish or negative liability.

Back to our driver on the wet road. Thirty years, no accidents, and a settled view about what was safe for a man of his experience. None of it counted. The standard was never his to set.

A word on how SQE1 tests this. You are not asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. Bolam, for the responsible body of professional opinion, which need not be the majority. Bolitho, because that opinion must still survive logical analysis. And Paris v Stepney Borough Council, for the one-eyed workman and his goggles, because gravity is the other half of magnitude. Bolam, Bolitho, Bolton v Stone. Three names, three different rules. Keep them apart.

Four traps. One: the outcome is not the test. A healthy appendix removed, an infection after an ear-piercing, a broken leg from a mistimed challenge for the ball. The court judges the decision, not what followed. An option that reasons backwards from the injury is a wrong answer.

Two: contributory negligence is not breach. The woman who stepped out without looking, the customer who crossed an untreated bay, the passenger who took a lift from a driver he knew had been drinking. All of it reduces damages. None of it answers whether the defendant fell below the standard.

Three: a professional's standard is set by the post, not by the person. Inexperience is no defence and neither is an honest best effort. A junior doctor discharges the duty by asking a senior colleague, but the standard itself never drops.

Four: res ipsa loquitur is an evidential tool, not a cause of action. It creates no presumption, it is not confined to claims against hospitals, and the claimant still bears the burden of proving breach.

Quick check, and it is another driver. A man with bipolar disorder, usually controlled by medication, becomes severely unwell. In a manic episode he is convinced he must reach a relative at once. He drives there at high speed, steering deliberately, aware of the traffic, but with his judgement badly disordered. He crosses a junction against a red light and injures another driver.

The medical evidence is that the episode grossly impaired his judgement but left him in control of the car. Is he judged by a lower standard because of his illness? Three candidate answers. One: yes, because he is judged by the standard of a reasonable person with the same disorder. Two: yes, because he had no warning that an episode was about to affect his driving.

Three: no, because the objective standard applies unless the illness wholly eliminated his control. Pause here if you want a moment.

The answer is three. A defendant with a mental illness is still judged by the objective standard of the reasonable person. The law does not recognise a reasonable person of unsound mind. The condition excuses him only where it entirely eliminates his control, the way automatism would. He kept control of the car, so he is judged as a reasonably competent driver.

Why the others fail. One asks for a standard the law refuses to build. Two is the trap this whole episode has been circling. Absence of warning is the language of the unaware physical condition, and that concession does not reach mental illness.

Five things to take away. One: the standard is objective and reasonable, not perfect, and what the defendant thought was safe counts for nothing. Two: it bends for a child, and for an impairing condition the defendant neither knew of nor could have discovered. For nothing else. Not inexperience, not clumsiness, not mental illness.

Three: for professionals, Bolam, then Bolitho's logic check, and Montgomery once the question is disclosure of risk. Four: weigh likelihood, gravity, cost, practicality and social value against the burden of removing the risk. Five: res ipsa loquitur infers negligence from the circumstances, but only the evidential burden moves.

And our driver on the wet road? Thirty years without an accident bought him nothing. A reasonable driver would have kept within the limit, and probably below it, because someone might step out unseen. Next time, Causation.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.