Introduction

Negligence is among the many tortuous cases that legal professionals and learners are
supposed to be acquainted with. This essay will critically discuss the concept of breach
of duty of care in negligence. From the onset, the essay will partially delve into the three
elements of negligence among which is the breach of duty of care. It will also provide a
conceptual definition of the breach of duty care as espoused by various legal authorities
and then proceed to critically discuss the matter under discussion with the help of case
law. The essay will conclude with a summary on the breach of duty of care in negligence.

The scope of breach of duty of care is a large one. The law of Tort is a widely explored
course in modern law and would be incomplete without discussing negligence. A tort is
an act that injures someone in some way, and for which the injured person may sue the
wrongdoer for damages. Torts are called civil wrongs, as opposed to criminal ones. It is
worthy of mention that the scope of breach of duty of care is incomplete without first of all
defining negligence. The basic rule of negligence is that the defendant must conform to
the standard of care expected of a reasonable person. In the case of Blythe v
Birmingham Waterworks1, negligence was defined as “the omission to do something
which a reasonable man guided upon those considerations which ordinarily regulate the
conduct of human affairs would do.” Negligence in the law of torts is a term used to
designate a failure to exercise due care, resulting in injury to another and for which an
action for money damages may be brought.

Negligence, as a tort, is generally defined as a breach of a duty of care. This duty of care
is owed by one person to another. When damage is caused to a person, who then
becomes a claimant, the type of damage has to be specified and also defined as
actionable2. One of the most prominent cases relating to tort and negligence is that of
Donoghue v Stevenson3. In this case, Mrs Donoghue and friend visited a café and Mrs
Donoghue’s friend bought her a bottle of ginger beer. The bottle was made of opaque

1 [1856] 11 Exch 781.

2 Roger Caldwell, A Guide to the Law of Tort, Straightforward Publishing, London, 2008 Page 19.
3 [1932] UKHL 100.
glass. When filling Mrs Donoghue’s glass, the remains of a decomposed snail floated out
of the bottle. Mrs Donoghue developed gastroenteritis as a result.

Therefore, Mrs Donoghue brought an action against the manufacturers of the ginger beer.
Lord Atkin formulated a general principle in this case, the neighbour principle, for
determining whether a duty of care should exist. He stated:

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then, in law,
is my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.

The manufacturers were found liable as they owed her a duty of care that the bottle did
not contain foreign bodies which would damage Mrs Donoghue’s health. This principle
was a landmark and establishment negligence as an independent tort.

The leading English tort law case of Caparo Industries plc v Dickman4 further
developed this judgement and came up with the concept of foresight. Was the damage
itself reasonably foreseeable? There must be a legal relationship of sufficient proximity
between the parties. There is also a requirement that it is just and reasonable to impose
a duty on the defendant. Even where the courts are prepared to find that the
circumstances are such as to be capable of giving rise to a duty of care, it is still likely
that the claimant in a case could fail if he or she was an unforeseeable victim of the
defendant’s negligence5. One such instance that amplifies this concept is Bourhill v
Young6 where the plaintiff in the case heard, but did not actually see a crash caused by
the motorcyclist’s negligence. The plaintiff later saw part of the aftermath of the accident
and sued the defendant after suffering nervous shock, and lost the case, as harm to her
of that type was not foreseeable. There was no breach of duty of care in this case.

4 [1990] UKHL 2.
5 Richard Owen, Essential Tort Law, 3rd Ed. Cavendish Publishing Limited, London, 2000.
6 [1943] AC 92.
Breach of Duty of Care

In many cases brought before the courts, it is evident that a duty of care exists between
the defendant and the claimant. Having successfully established that the defendant owed
a duty of care to the plaintiff, the real issue is whether or not the actions of the defendant
were sufficient to meet their duty7. To determine this, the court has set the standard of
care that they should have met. If the defendant failed to act reasonably given their duty
of care, then they will be found to have breached it. A defendant will be regarded as being
in breach of a duty of care if his conduct falls below the standard required by the law. The
standard normally set is that of a reasonable and prudent man. This standard usually
comprises the actions which the court considers a reasonable person would have taken
under the circumstances. This concept emanates from the words of Baron Alderson in
the case of Blythe v Birmingham Waterworks8 in which he pointed out that:

Negligence is the omission to do something which a reasonable man guided

upon those consideration which ordinarily regulate the conduct of human
affairs, would do; or doing something which a prudent and reasonable man
would not do.

The objective standard required by the law is one which is related to the type of activity
in which the defendant is engaged rather than to the category of actor to which the
defendant belongs. The importance of this distinction is highlighted in the case of Wilsher
v Essex Area Health Authority9. A trainee doctor had made a mistake when undertaking
specialist work in a special care unit to which he was attached. It was argued on his behalf
that no more could be expected of him than could be reasonably required of a person
having his formal qualifications and practical experience. This argument was rejected by
the majority of the court and in enunciating the standard required this is what Mustill LJ
(as he then was)10 stated:

7 V. Harpwood, Principles of Tort Law, 4th Ed. Cavendish Publishing House, 2000, p.123.
8 [1856] 11 Ex. 781; 784.
9 [1988] AC 1074.
10 [1987] QB 730 (CA).
 …this notion of a duty tailored to the actor, rather than to the act which he
elects to perform, has no place in the law of tort. … I prefer (the proposition
which) relates the duty of care not to the individual, but to the post which he
occupies. … In a case such as the present, the standard is not just that of the
averagely competent and well informed junior houseman … but of such a
person who fills a post in a unit offering a highly specialised service.

It follows therefore, that the standard of care expected is directly related to the type of
activity in which the defendant belongs. Where an individual elects to perform an act and
another person relies on their representation, there is a duty to perform according to that
skill professed and it is immaterial that they are not highly specialised in that field.

To push the argument further, Steele posits that the standard of care to be applied in any
given case will depend upon the activity being performed by the defendant. In support of
Mustill LJ’s approach, it is clear that the relevant standard will in some cases also depend
on the kind of skill that the defendant professes to have, as opposed to their level of
experience, which should be irrelevant. The case of Phillip v William Whiteley11
highlights this point. This is a case where a jeweller who pierced ears was held to the
standards of care and hygiene to be expected of a reasonable jeweller, not to the
standards of a qualified medical practitioner.

In Glasgow Corporation v Muir12 Lord Macmillan further explained that the test of a
reasonable man

… eliminates the personal equation and is independent of the idiosyncrasies

of the particular person whose conduct is in question. The reasonable man is
presumed to be free both from over-apprehension and from over-confidence.

Hodge13 adds that the reasonable man reaches a decision which carefully balances all
the known facts and those facts which can be anticipated, to enable him to identify any

11 [1938] 1 All ER 566.

12 [1943] UKHL 2.
13 S. Hodge, Tort Law, 3rd Ed. Routledge, London, 2011.
risk. This allows him to opt for a course of action or omission which minimises the risk to
any person likely to be affected by it.

Conclusion

This essay has established that for there to be a breach of duty of care, there must have
been a relationship existing between the defendant and the claimant. It is also an
indisputable fact that the standard employed in determining whether or not a duty of care
has been breached, is that of how a reasonable person would have reacted under the
circumstances. If the defendant failed to act reasonably given their duty of care, then they
will be found to have breached their duty of care.
 BIBLIOGRAPHY

Case Law

Blythe v Birmingham Waterworks [1856] 11 Ex. 781; 784.

Bourhill v Young [1943] AC 92.

Caparo Industries plc v Dickman [1990] UKHL 2.

Donoghue v Stevenson [1932] UKHL 100.

Glasgow Corporation v Muir [1943] UKHL 2.

Phillip v William Whiteley [1938] 1 All ER 566.

Wilsher v Essex Area Health Authority [1987] QB 730 (CA).

Wilsher v Essex Area Health Authority [1988] AC 1074.

Books

R. Caldwell, A Guide to the Law of Tort, Straightforward Publishing, London, 2008, p. 19.

R. Owen, Essential Tort Law, 3rd Ed. Cavendish Publishing Limited, London, 2000.

S. Hodge, Tort Law, 3rd Ed. Routledge, London, 2011.

V. Harpwood, Principles of Tort Law, 4th Ed. Cavendish Publishing House, 2000, p. 123.