CRITICALLY ANALYSE THE CRITERIA USED BY THE COURTS IN DETERMINING

WHETHER THERE HAS BEEN A BREACH OF A DUTY OF CARE UNDER THE LAW OF

TORT.
CRITICALLY ANALYSE THE CRITERIA USED BY THE COURTS IN DETERMINING

WHETHER THERE HAS BEEN A BREACH OF A DUTY OF CARE UNDER THE LAW OF

TORT.

According to the learned author of Principles of Tort a claimant must establish four requirements

in order to the cause of action in negligence.1 These are: i) proof that the defendant owed a duty

of care to the claimant to avoid causing the kind of injury which the claimant has complained of,

ii) proof that the defendant breached the duty of care, iii) proof that the defendant’s breach

caused the claimant’s damage and iv) proof that the damage caused the claimant is foreseeable

and not too remote.2 This article critically examines the criteria by which the courts determine

the second requirement, i.e. whether there has been a breach of duty of care.

In Bourhill v Young Lord Thankerton explained the duty of care as duty on the part of the

defendant to exercise “such reasonable care as will avoid the risk of injury to such persons as he

can reasonably foresee might be injured by failure to exercise such reasonable care.” 3 The

question whether the defendant owed a duty of care to the claimant is very crucial and the

absence of a duty of care may be the sole reason for a lack of remedy. 4 Thus in D v East

Berkshire Community Health NHS Trust and Others 5 the claimants failed to obtain remedy

against the defendants because the defendants did not owe the claimants a duty of care.

In Customs and Excise Commissioners v Barclays Bank plc 6 the House of Lords stated the three

general approaches forming “the conceptual basis on which courts decide whether a duty of care

1
R Nulheron, Principles of Tort ( Cambridge University Press 2016)
2
ibid
3
Bourhill v Young [1943] AC 92
4
Nulheron (n 1)
5
D v East Berkshire Community Health NHS Trust and Others [2005] 2 AC 373
6
Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181
exists in particular circumstances.” These are i) the Caparo test, ii) the Herdley Byrne test and

iii) the incremental test.7 See also Principles of Tort Law.

The Caparo test drives from the House of Lords case of Caparo Industries plc v Dickman.8 It is a

tripartite test. In his judgment in the Caparo case, Lord Bridge summarised the test in the

following terms:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in

any situation giving rise to a duty of care are that there should exist between the party

owing the duty and the party to whom it is owed a relationship characterised by the law

as one of "proximity" or "neighbourhood" and that the situation should be one in which

the court considers it fair, just and reasonable that the law should impose a duty of a

given scope upon the one party for the benefit of the other.9

Thus the elements of the Caparo three-stage test of duty of care are ‘foreseeability’, ‘proximity’

and ‘policy’.10

Apart from the Caparo test, a second approach by which the courts ascertain a duty of care in

novel situations is by proof that the defendant voluntarily assumed responsibility to the claimant

in respect of his conduct towards the claimant, and the claimant has placed reliance upon the def

endant to exercise proper skill and care in that conduct. The origin of this case of Hedley Byrne

& Co Ltd v Heller & Partners Ltd.11 In that case, Lord Morris stated that “if someone possessed

of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of

another person who relies upon that skill, a duty of care will arise.” although the Hedley Byrne te
7
ibid
8
Caparo Industries plc v Dickman [1990] 2 AC 605
9
ibid
10
S Tofaris, “Duty of Care: An Analytical Approach” (2018) 77 Camb Law J 454
11
Hedley Byrne & Co Ltd v Heller & Partners
st is often applied in cases of pure economic loss, its application in personal injury and property

damage claims has not been precluded.12

The second element which is required to be established in order to succeed in a claim in

negligence involves an enquiry as to whether the defendant breached his duty of care owed to the

claimant. The author of Principles of Tort Law explains that this enquiry necessarily entails a

two-stage analysis: the first being ascertainment of the standard of care against which the

defendant’s conduct should be measured and the second being an enquiry as to whether the

defendant’s behaviour satisfied or fell short of that standard. 13 In Barrie v Cardiff CC the Court

of Appeal noted that ‘[t]he standard of care is a question of law; but whether or not, in any given

case, that standard has been attained is a question of fact for the judge to decide, having regard to

all the circumstances of the case’.14

On the question of standard of care, the authorities are unanimous that the law of negligence

imposes on the defendant an objective, reasonable standard of care. 15 Indeed in his seminal

judgment in Donoghue v Steven Lord Atkinson famously stated that ‘[y]ou must take reasonable

care to avoid acts or omissions which you can reasonably foresee would be likely to injure your

neighbour’.16 The requirement of a reasonable standard of care is not to be equated to a

requirement of perfection. The Privy Council endorsed this view in Hamilton v Papakura DC

(NZ) when it stated that the law does not seek to impose ‘an unattainable standard that guarantees

against all harm and all circumstances’. 17 Similarly, the House of Lords in Bolton v Stone stated

12
Mulheron (n 1)
13
Mulheron (n 1)
14
Barrie v Cardiff CC [2001] EWCA Civ 703
15
D Nolan, “Varying the Standard of Care in Negligence” (2013) 72 Camb Law J 651
16
Donoghue v Steven [1932] AC 562 (HL) 580
17
Hamilton v Papakura DC (NZ) [2002] UKPC 9
that ‘[t]he standard of care in the law of negligence is the standard of an ordinarily careful

man’.18 That ordinarily careful man or reasonable man has famously been equated to the

proverbial man ‘on the top of the Clapham omnibus’.19

Another important point is that, the standard of care is an objective standard. 20 In Glasgow Corp

v Muir Lord Macmillan stated as follows regarding the objective standard:

The standard of foresight of the reasonable man is, in one sense, an impersonal test. It

eliminates the personal equation and is independent of the idiosyncrasies of the particular

person whose conduct is in question. Some persons are by nature unduly timorous and

imagine every path beset with lions. Others, of a more robust temperament, fail to foresee

or nonchalantly disregard even the most obvious dangers. The reasonable man is

presumed to be free of both over-apprehension and from over confidence…21

The approach of objective test adopted by the courts in assessing the standard of care is credited

with some advantages. According to Mulheron the objective test has two advantages. Firstly it

provides a standard of behaviour expected of all members of society and by which individual

conducts are to be judged without regard to the subjective beliefs of the defendant as to his own

conduct. Secondly it enables the courts to determine in a straightforward manner whether the

defendant’s act or omission amounts to negligence or not.

The objective nature of the standard of care means that it does not matter that the defendant cann

ot attain it because of his own peculiar frailties, inexperience or circumstances. In Nettleship v.

Weston the defendant, a learner driver, crashed her car and caused injury to her instructor who w

18
Bolton v Stone [1951] AC 850 (HL)
19
Bolam v Friern Hosp Management Committee [1957] 1 WLR 582 (QB)
20
Nolan (n 15)
21
Glasgow Corp v Muir [1943] AC 448,
as sitting at the front seat. In explaining the duty and standard of care imposed on a learner driver

to pedestrians on or near the road, Lord Denning MR stated as follows:

In the civil law if a driver goes off the road on to the pavement and injures a pedestrian, or

damages property, he is prima facie liable. Likewise if he goes on to the wrong side of the

road. It is no answer for him to say: "I was a learner driver under instruction. I was doing

my best and could not help it." The civil law permits no such excuse. It requires of him th

e same standard of care as of any other driver... The learner driver may be doing his best,

but his incompetent best is not good enough. He must drive in as good a manner as a drive

r of skill, experience and care, who is sound in mind and limb, who makes no errors of jud

gment, has good eyesight and hearing, and is free from any infirmity...22

However, as with most fields of law, there are exceptions to the objective test of assessing the sta

ndard of care and, as Mulheron puts it, “the law does not always insist on a purely objective stan

dard”.23 Mulheron explained further that the standard of care can be elevated or depressed depen

ding upon the defendant’s characteristics or the surrounding circumstances including variables su

ch as the defendant’s specialism, age, disability and whether he is the claimant’s parent or he is e

ngaged in a dangerous or fast moving sport.24

In the context of a defendant with a particular profession or specialism, the courts’ approach to a

ssessing the standard of care is by the application of the Bolam test,25 named after the case of Bol

am v Friern Hospital Management Committee.26 Bolam v Friern Hospital Management Committ

22
Nettleship v Weston [1971] 2 QB 691
23
Mulheron (n 1)
24
Mulheron (n 1)
25
Nolan (n 15)
26
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
ee was a medical negligence case. In Bolam McNair J explaining to the jury the standard of care

required of defendants with special skill or profession stated as follows:

where you get a situation which involves the use of some special skill or competence, then

the test as to whether there has been negligence or not is not the test of the man on the top

of a Clapham omnibus, because he has not got this special skill. The test is the standard of

the ordinary skilled man exercising and professing to have that special skill. A man need n

ot possess the highest expert skill; it is well established law that it is sufficient if he exerci

ses the ordinary skill of an ordinary competent man exercising that particular art.27

Therefore, McNair J explained further that “[a] doctor is not guilty of negligence if he has acted i

n accordance with a practice accepted as proper by a responsible body of medical men skilled in

that particular art…” the Bolam test is not limited in its application to medical professional only

but its scope extends to cover all cases in which the defendant professes to exercise some skill an

d professionalism. It’s application extends to solicitors,28 surveyors,29 architects30 and football ref

erees31

The defendant’s characteristic such as his age may also affect a modification of the objective test

of the standard of care. In this context, it was held in Mullin v Richards that the standard of care i

mposed by the law on a child is that of ‘an ordinarily prudent and reasonable child’ of the same a

ge.32 Salmon LJ explain the same point as follows:

27
ibid
28
McFarlane v Wilkinson [1997] PNLR 578
29
Theodore Goddard v Fletcher-King [1997] 2 EGLR 131
30
Nye Saunders & Partners (a fi rm) v Alan E Bristow (1987) 37 BLR 97 (CA) 103
31
Vowles v Evans [2003] EWCA Civ 318
32
Mullin v Richards and Another [1998] 1 All ER 920
 The question as to whether the plaintiff can be said to have been guilty of contributory ne

gligence depends on whether any ordinary child of 13 1/2 could be expected to have done

any more than this child did. I say, “any ordinary child”. I do not mean a paragon of prude

nce; nor do I mean a scatter-brained child; but the ordinary girl of 13 1/2.33

The objective standard is also influenced by the disability of the defendant. The judicial propositi

on in this context was that expressed in the case of Mansfield and Another v. Weetabix Ltd. and

Another.34 In that case, the first defendants’ employee lorry-driver suffered from malignant insuli

noma, a condition that resulted in a hypoglycaemic state which starved the brain of glucose so th

at it was unable to function properly. The driver was however unaware of his condition. It was he

ld that where a defendant was afflicted with a disability such as a medical condition which he did

not know and could not reasonably have known of, the standard of care in that circumstance is th

at of a reasonable defendant who is unaware that he was suffering from that condition. In his jud

gment, Leggatt L.J. stated as folows:

There is no reason in principle why a driver should not escape liability where the disablin

g event is not sudden, but gradual, provided that the driver is unaware of it. A person with

Mr. Tarleton's very rare condition commonly does not appreciate that his ability is impaire

d, and he was no exception. Although by the time of trial Mr. Tarleton was dead, and ther

e was no direct evidence of his actual state of awareness, the judge held that he “would no

t have continued to drive if he had appreciated and was conscious that his ability was imp

aired.” Of course, if he had known that it was, he would have been negligent in continuing

to drive despite his knowledge of his disability. So also if he ought to have known that he

was subject to a condition that rendered him unfit to drive...

33
Gough v Thorne [1966] 3 All ER 398
34
Mansfield and Another v. Weetabix Ltd. and Another [1998] 1 WLR 1263
But of course, as indicated in the dictum of Leggatt L.J quoted above, the Mansfield principle do

es not apply where the defendant is aware or ought reasonably to have been aware of his disabilit

y but continued to act anyway.

If the standard of care required of the defendant has been established, the next issue on the questi

on breach of duty of care would be an enquiry as to whether the defendant’s behaviour satisfied

or fell short of that standard. In Blyth v Birmingham Waterworks Co Alderson B explained breac

h as “the omission to do something which a reasonable man, guided upon those considerations w

hich ordinarily regulate the conduct of human affairs, would do, or doing something which a pru

dent and reasonable man would not do.”35

There are a number of pathways for proving breach of duty. Section 11 of the Civil Evidence Act

1968 (CEA) provides as follows:

(1) In any civil proceedings the fact that a person has been convicted of an offence by or bef

ore any court in the United Kingdom or [of a service offence (anywhere)] shall (subject to su

bsection (3) below) be admissible in evidence for the purpose of proving, where to do so is r

elevant to any issue in those proceedings, that he committed that offence...

(2) In any civil proceedings in which by virtue of this section a person is proved to have bee

n convicted of an offence by or before any court in the United Kingdom or [of a service offe

nce]—

(a) he shall be taken to have committed that offence unless the contrary is proved...36

The effect of section 11 of the CEA is to raise a presumption of breach of duty of care against the

defendant and thereby shift the burden to the defendant to prove that he was not negligent.
35
Blyth v Birmingham Waterworks Co (1856) 11 Ct Exch 781
36
Civil Evidence Act 1968
Although the burden of proving negligence is always on the claimant, 37 there are instances under

which a court may infer negligence from the circumstances thereby shifting the burden to the def

endant to disprove negligence.38 This applies under the doctrine of res ipsa loquitur, a latin maxi

m which means “the thing speaks for itself.” The doctrine has its roots from the seminal speech o

f Erle CJ in Scott v London and St Katherine Docks Co39 wherein he stated as follows:

There must be reasonable evidence of negligence. But where the thing is shewn to be und

er the management of the defendant or his servants, and the accident is such as in the ordi

nary course of things does not happen if those who have the management use proper care,

it affords reasonable evidence, in the absence of explanation by the defendants, that the ac

cident arose from want of care.

Therefore, to succeed on a plea of res ipsa loquitur three requirements must be met: i) the accide

nt would ordinarily not happen if the management of the thing or activity exercise proper care ii)

the thing or activity is under management of the defendant or the defendant’s agent and iii) the c

laimant does not know the cause of the accident.

A successful plea of res ipsa loquitur by the claimant has the effect of furnishing the court with t

he evidence of negligence on the basis of which a it is at liberty to enter judgement in favour of t

he claimant.40 Although in Henderson41 Lord Reid and Lord Donovan appeared to hold the view

that a successful plea of res ipsa loquitur also has the effect of shifting the burden to the defenda

nt to disprove negligence, the Privy Council in Ng Chun Pui42 held a contrary view and held that

the burden does not shift to the defendant.

37
B Robertson, “Proving Negligence” (2008) 37 CLWR 1
38
Ballard v North British Railway Co (1923) S.C. (H.L.) 43
39
Scott v London and St Katherine Docks Co (1865), 3 H & C 596
40
ibid
41
Henderson v Henry E Jenkins [1970] AC 282
42
Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (PC)
The conclusion to be drawn from these analyses is that judicial opinions on the criteria to adopt

in assessing the duty of care and the breach of duty of care is fraught with inconsistencies and

apparent contradictions. On the one hand it is generally touted that an objective standard is

applied when assessing a breach of the duty of care. On the other hand so many exceptions exist

to the application of the objective test that the standard is sometimes lowered or upgraded

depending on the characteristics or circumstance of the defendant.

References

B Robertson, “Proving Negligence” (2008) 37 CLWR 1

Ballard v North British Railway Co (1923) S.C. (H.L.) 43

Barrie v Cardiff CC [2001] EWCA Civ 703

Blyth v Birmingham Waterworks Co (1856) 11 Ct Exch 781

Bolam v Friern Hosp Management Committee [1957] 1 WLR 582 (QB)

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Bolton v Stone [1951] AC 850 (HL)

Bourhill v Young [1943] AC 92

Caparo Industries plc v Dickman [1990] 2 AC 605

Civil Evidence Act 1968

Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181

D Nolan, “Varying the Standard of Care in Negligence” (2013) 72 Camb Law J 651

D v East Berkshire Community Health NHS Trust and Others [2005] 2 AC 373

Donoghue v Steven [1932] AC 562 (HL) 580

Glasgow Corp v Muir [1943] AC 448,

Gough v Thorne [1966] 3 All ER 398

Hamilton v Papakura DC (NZ) [2002] UKPC 9

Hedley Byrne & Co Ltd v Heller & Partners

Henderson v Henry E Jenkins [1970] AC 282

Mansfield and Another v. Weetabix Ltd. and Another [1998] 1 WLR 1263

McFarlane v Wilkinson [1997] PNLR 578

Mullin v Richards and Another [1998] 1 All ER 920

Nettleship v Weston [1971] 2 QB 691

Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (PC)

Nye Saunders & Partners (a fi rm) v Alan E Bristow (1987) 37 BLR 97 (CA) 103

R Nulheron, Principles of Tort ( Cambridge University Press 2016)

S Tofaris, “Duty of Care: An Analytical Approach” (2018) 77 Camb Law J 454

Scott v London and St Katherine Docks Co (1865), 3 H & C 596

Theodore Goddard v Fletcher-King [1997] 2 EGLR 131

Vowles v Evans [2003] EWCA Civ 318