Once you've established that a duty of care exists (Topic 1), the next question is whether the defendant breached it. A breach occurs when the defendant falls below the standard of care expected of them. The claimant must prove on the balance of probabilities that the defendant's conduct was unreasonable.
Breach is the second element in the negligence claim. Without it, you cannot succeed even if you have a duty of care and have suffered damage. The court asks: what would the reasonable person have done in the defendant's position? If the defendant's conduct fell short of that standard, they are in breach.
In exam questions, you'll often be asked to advise whether a defendant has breached their duty. Work through the standard of care, consider the specific characteristics of the defendant (child, professional, disabled person), and weigh up the factors the court would consider. Always apply the facts to the legal test.
The standard of care is objective, not subjective. The court doesn't ask what the defendant actually intended or what they thought was reasonable. Instead, it asks what a reasonable person would have done in the same situation. This means even a well-meaning defendant can still be found in breach if their conduct fell below the objective standard.
This is the foundational case on the standard of care. Alderson B defined negligence as "the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do." The key phrase is "reasonable man" — it's not about being perfect, it's about being reasonable.
The standard is not the best possible care. It's what is reasonably practicable in the circumstances. A defendant doesn't need to take every conceivable precaution — only those that a reasonable person would consider necessary. The law recognises that resources are limited and absolute safety is impossible.
The reasonable person is an ordinary person of reasonable prudence. They are not exceptionally cautious, nor are they careless. They take the precautions that any sensible person would take in the circumstances. The court constructs this legal fiction and uses it as the benchmark for measuring everyone's conduct.
As a general rule, the reasonable person standard is not adjusted to reflect the individual defendant's characteristics. A clumsy person is judged by the standard of a reasonable person, not a clumsy one. An inexperienced driver is judged by the standard of a reasonably competent driver, not a learner. This ensures consistency and protects the public.
Children are not judged by the adult reasonable person standard. Instead, the court asks what a reasonable child of the same age would have done. In Gough v Thorne, the defendant driver was held negligent because he ought to have anticipated that children might behave carelessly near his lorry. The child's conduct was not judged by adult standards.
When a question involves a child as defendant, remember: the standard is that of a reasonable child of the same age, not a reasonable adult. But when a child is the claimant, the defendant must take into account that children may act impulsively or without due care. Adults are expected to anticipate this.
Where a defendant has a physical disability, the standard of care is adjusted to take that disability into account. In Roberts v Ramsbottom, the defendant had suffered a stroke and suffered a blackout while driving. The court held he was not negligent because a reasonable person who knew they might suffer a blackout would not have driven. However, if he genuinely did not know, the standard was adjusted to account for his condition.
The law adjusts for physical disability because it would be unfair to judge someone by a standard they physically cannot meet. If a person with a limp is slower to react, they are judged against what a reasonable person with that same limp would do. The adjustment is limited though — it doesn't give a free pass, just a fair benchmark.
Unlike physical disability, mental incapacity is NOT an exception to the reasonable person standard. A person with a mental illness, learning disability, or other mental condition is still judged by the standard of the reasonable person. This may seem harsh, but the policy reason is to protect potential victims from the unpredictable behaviour of those who may not appreciate the consequences of their actions.
This is a common exam trap. Physical disability adjusts the standard, but mental incapacity does not. If a question involves a defendant with mental health issues, they are still judged by the ordinary reasonable person test. Only physical characteristics that prevent the defendant from meeting the standard will trigger an adjustment.
| Characteristic | Standard Adjusted? | Key Case | Notes |
|---|---|---|---|
| Child | Yes — to child of same age | Gough v Thorne [1966] | Reasonable child of the same age |
| Physical disability | Yes — to person with same disability | Roberts v Ramsbottom [1980] | Standard adjusted for the physical limitation |
| Mental incapacity | No — ordinary standard applies | No specific case | Policy reason: protect potential victims |
| Inexperience | No — ordinary standard applies | Nettleship v Weston [1971] | Learner driver judged by competent driver standard |
| Clumsiness | No — ordinary standard applies | General principle | Defendant's personal characteristics don't lower the standard |
When the defendant is a professional — such as a doctor, solicitor, accountant, or surveyor — they are judged by the standard of a reasonably competent professional in the same field. This means they must exercise the skill and care that a competent member of their profession would exercise. They are held to a higher standard because they have specialised knowledge and training.
The Bolam test comes from Bolam v Friern Hospital Management Committee [1957]. McNair J stated that a professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. In other words, if a respected group of professionals would have done the same thing, it is not negligent — even if other professionals would disagree.
The Bolam test essentially defers to professional opinion. If there is a body of competent professional opinion that supports the defendant's conduct, they are not negligent. The test doesn't require the professional opinion to be the majority view — it just needs to be a responsible and competent body of opinion. This gives professionals some protection when practising in areas of genuine uncertainty.
While Bolam gives deference to professional opinion, it does not mean that any professional opinion will do. The body of opinion must be "responsible" and "competent." If only a tiny minority of professionals support the defendant's approach, and the court considers that opinion to be illogical or unreasonable, it may not satisfy the Bolam test.
The House of Lords in Bolitho refined the Bolam test. The court confirmed that the judge is not bound to accept every body of professional opinion. The opinion must be capable of withstanding logical analysis. If the professional opinion is not logically defensible — for example, if it has no rational basis — the court can reject it and find negligence even though some professionals support the defendant's conduct.
Before Bolitho, there was a risk that the Bolam test would give professionals almost complete immunity from negligence claims, as long as they could find some professional opinion to support their actions. Bolitho gave the court a "gatekeeping" role: the judge must be satisfied that the professional opinion is both responsible and logically defensible. This is a modest but important check on professional power.
Montgomery fundamentally changed how the courts approach the duty of doctors to inform patients of risks. Before Montgomery, the Bolam test applied: if a responsible body of medical opinion would not have disclosed a particular risk, the doctor was not negligent for failing to do so. The Supreme Court in Montgomery rejected this approach for informed consent cases.
The Supreme Court held that doctors must take reasonable care to ensure that a patient is aware of any material risks involved in any 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 is or should reasonably be aware that the particular patient would attach significance to it. This is a patient-centred test, not a doctor-centred one.
If you see an exam question about a doctor failing to warn a patient of a risk, apply Montgomery, not Bolam. The question is: would a reasonable patient consider this risk significant? Not: would a responsible body of doctors have warned about it? Montgomery represents a significant shift towards patient autonomy.
| Case | Area | Principle |
|---|---|---|
| Bolam v Friern Hospital [1957] | Medical negligence | Practice accepted by a responsible body of professional opinion is not negligent |
| Bolitho v City and Hackney HA [1998] | Medical negligence | Professional opinion must be logically defensible — the court can reject illogical opinions |
| Montgomery v Lanarkshire HB [2015] | Informed consent | Patient-centred test: doctor must disclose material risks a reasonable patient would want to know |
| Nettleship v Weston [1971] | Driving (learner) | Learner driver judged by standard of reasonably competent driver, not a learner |
| White v Jones [1995] | Solicitor negligence | Solicitor owed duty to intended beneficiary of will, even though no contract with them |
When deciding whether a defendant has breached their duty, the court weighs up several factors. There is no single formula, but the key factors are: the likelihood of harm, the seriousness of the potential harm, the cost and practicality of taking precautions, the utility of the defendant's conduct, and whether the defendant followed common practice. The court balances the magnitude of the risk against the burden of eliminating it.
The greater the likelihood of harm occurring, the more the defendant must do to prevent it. If harm is virtually certain, the defendant must take significant precautions. If the risk is very small, the defendant may only need to take minor steps — or possibly none at all. The court assesses the probability of the harm materialising, not just whether it was possible.
Even if the likelihood of harm is low, if the potential harm is very serious (such as death or severe injury), the defendant must take more precautions. This is why, for example, railway companies must spend significant sums on safety even though accidents are rare — the consequences of a derailment are potentially catastrophic.
In Latimer v AEC, the defendant's factory floor became dangerously slippery due to a flood. The defendant had taken some precautions (putting down sawdust and warning signs) but had not shut down the factory. The court held the defendant was not negligent — the cost and disruption of shutting down would have been disproportionate to the risk, especially given the exceptional weather conditions.
The law does not require the defendant to eliminate all risk regardless of cost. The defendant only needs to take precautions that are reasonably practicable in the circumstances. If the cost of a precaution is grossly disproportionate to the risk it addresses, the defendant may not be required to take it. But if the precaution is relatively cheap and simple, failure to take it is more likely to be a breach.
The court considers the social utility of what the defendant was doing. If the defendant's conduct serves a valuable social purpose (such as running an ambulance service, providing electricity, or carrying out essential roadworks), the court may accept a higher level of risk. Conversely, if the activity has little social value, the court will expect greater precautions.
Evidence that the defendant followed common industry practice is relevant to the question of breach, but it is not conclusive. The court may find that an entire industry has been negligent in setting its standards. In other words, "everyone does it" is not a complete defence. The ultimate question remains: what would a reasonable person have done?
Don't fall into the trap of thinking that because everyone in the industry does something, it must be reasonable. The court makes its own objective assessment. If the industry standard is clearly inadequate, the court will find breach despite the defendant following common practice.
Glasgow Corporation v Muir is a leading case on how courts balance the factors in breach of duty. The defendants had taken a group of children on an outing to a works. During tea, an escaped lion caused panic and a child was injured. The House of Lords held the defendants were not negligent — the risk of a lion escaping was not foreseeable. Lord Macmillan set out the balancing exercise: the magnitude of the risk must be balanced against the burden of taking precautions to eliminate it.
In exam answers, you should always run through these factors when assessing breach. Even if you conclude there was no breach, showing the court's balancing exercise demonstrates your understanding. Think of it as a scales: risk on one side, burden of prevention on the other. Which way does it tip?
Res ipsa loquitur is a legal doctrine that allows the court to infer negligence from the circumstances of an accident, even without direct evidence of what the defendant did wrong. The Latin phrase means "the thing speaks for itself." It applies when the accident is of a type that would not normally happen without negligence, and the defendant had control over the situation.
This is the foundational case on res ipsa loquitur. The claimant was injured when bags of sugar fell from the defendant's warehouse. The claimant could not prove exactly how the accident happened or what the defendant's employees had done wrong. The court held that the accident was of a type that would not normally occur without negligence, and the defendant had control of the sugar, so negligence could be inferred.
The modern approach to res ipsa loquitur is more flexible than the traditional strict requirements. The doctrine now operates as a shift in the evidential burden: if the claimant shows facts from which negligence can be inferred, the burden shifts to the defendant to explain what happened and show they were not negligent. If the defendant cannot provide a satisfactory explanation, the court may find negligence established.
Res ipsa loquitur is an evidential tool, not a separate cause of action. It does not create a presumption of negligence that the defendant must disprove. It simply allows the court to infer negligence from the facts. The claimant still bears the overall burden of proving breach on the balance of probabilities.
When a statute sets out safety standards or requirements, a breach of that statutory duty can be used as evidence of negligence in a civil claim. However, it is not automatically conclusive. The court will consider whether the statutory provision was intended to protect the class of person to which the claimant belongs and against the type of harm suffered.
Complying with a statutory standard is evidence that the defendant acted reasonably, but it is not a complete defence. The court may still find that a reasonable person would have done more than the statute requires. Conversely, breaching a statutory standard is evidence of negligence, but the defendant may argue that they still met the common law standard of care in all the circumstances.
If an exam question mentions a statute or regulation, consider whether it helps or hinders the negligence analysis. Don't treat statutory compliance as an automatic defence or statutory breach as automatic negligence. The common law standard of care is separate from statutory duties, though the two often overlap.