⇒ Once you discover someone has a duty of care, to establish negligence there must have been a breach of that duty of care

⇒ To determine whether someone has breached their duty of care, the reasonable person test is used

⇒ The test is as follows: ‘What would the reasonable person have done in the Defendant's circumstances?’

• If the defendant's actions fell below what the reasonable person would have done in the circumstances, then his actions would have breached the duty of care

⇒ The standard of the reasonable person:

• It is objective (Glasgow Corp v Muir [1943])
• Does not always reflect “average” behaviour

⇒ See the cases of Blyth v Birmingham Waterworks Co (1856), Glasgow Corporation v Muir [1943], and McFarlane v Tayside Health Board [1999]

⇒ A subjective element → although the 'reasonable person' aspect of the test is objective, there is also a subjective element in the reference to the 'Defendant's circumstances'

• This subjective element brings into play issues such as whether the defendant was acting in an emergency. However, the courts will not generally take into account defendant's personal characteristics (see below)

⇒ ‘The Bolam Test’: “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 the 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” - McNair J in Bolam v Friern Hospital Management Committee [1957]

• In other words, where the defendant has a duty of care and has a particular skill, the determination of whether he/she has breached that duty of care is not 'the reasonable person' test but the 'Bolam test' i.e. the defendant must have met the standard of the ordinary skilled man exercising and professing to have that special skill
• See the case facts here

⇒ In Bolitho v City and Hackney HA [1998], it was said that where a doctor fails to take a certain cause of action in the treatment of a patient, and having made a reasoned basis for that decision (i.e. ‘reached a defensible conclusion’), they will not be liable for negligence

⇒ In Sidaway v Bethlem Royal Hospital Governors [1985], the court applied the Bolam test in the determination of whether a doctor was liable for negligence for not telling a patient of the 1% risk paraplegia if he went through with the surgery, which materialised. It was held that the doctor was not liable because he was not required to give an elaborate explanation of the risks

• However, in the case of Chester v Afshar [2005], on similar facts to Sidaway, the court found that the doctor was liable for negligence because the court felt that the patient should be able to make an informed choice as to undertake the surgery: not being told of all the risks clearly undermined this informed choice

⇒ Note, however, Sidaway v Bethlem Royal Hospital Governors [1985] has NOT been overruled by the increase in importance of informed consent → BUT, it does demonstrate a move towards greater patient autonomy, so is something that all medical professionals should have in back of their minds

⇒ There is a fear that if Sidaway was overruled this may encourage the practice of defensive medicine i.e. doctors may fear doign anything in case they are sued, rather than acting in the best interest of the patient

⇒ Jones v North West SHA [2010]

⇒ M's Guardian v Lanarkshire Health Board [2010]

⇒ Although the test for breach of duty of care takes into account 'the defendant's circumstances', this really brings into play issues such as whether the defendant was acting in an emergency (as mentioned above). However, the court will generally not take into account the defendant's personal characteristics.

⇒ For example, even where the defendant is learning to be an 'expert' (e.g. as a learner driver you are learning to be a fully competent driver), you will still usually be held to the standard of an expert.

• See, for example, Nettleship v Weston [1971]
• However, see Mansfield v Weetabix Ltd [1998]

⇒ The defendant, even as an amateur, will be compared to the standard of a reasonably skilled amateur: see, for example, Wells v Cooper [1958]

⇒ Although the court do not usually take into account the personal characteristics of the defendant, they will take into account the age of the child - so this is an exception to the general rule

⇒ See, for example, Mullin v Richards [1998] and Orchard v Lee [2009]

⇒ Although the court do not usually take into account the personal characteristics of the defendant, they will take into account the date the defendant acquired some specific knowledge if relevant to the particular case - so this is an exception to the general rule

⇒ In other words, if when the incident occured it was common practice to do one thing, but later evidence suggests that 'practice' is dangerous or bad, the court will take it into consideration that the 'practice' was common when the incident occured. See, for example, the case of Roe v Minister of Health [1954]

⇒ 1) The Likelihood of Harm

⇒ 2) The Serioussness of the Consequences

⇒ 3) The Utility of the Defendant’s Conduct - Compensation Act 2006

⇒ 4) The Cost/Practicability of Taking Precautions

⇒ 5) The Claimant’s Financial Circumstances

⇒ In other words, these five things are taken into account to determine whether or not the defendant met the standard of care expected of them

⇒ See, for example, Bolton v Stone [1951]. Compare this case with the case of Haley v London Electricity Board [1965]

⇒ Also see Overseas Tankship Ltd v The Miller Steamship, The Wagon Mound (No 2) [1967]

⇒ The more serious the potential consequences of the defendant's actions the more likely he/she will be liable for breaching his/her duty of care

⇒ See, for example, Paris v Stepney BC [1951]

⇒ The greater the social utility of the defendant's conduct, the less likely it is that the Defendant will be held to have been negligent i.e. the cricket ground in Bolton v Stone [1951] had a social utility!

⇒ See, for example, Daborn v Bath Tramways Motor Co Ltd [1946]

⇒ To prevent a so-called ‘compensation culture’ the court has codified the case law on this matter in The Compensation Act 2006. This just says, in effect, that the court can take the social utility of the defendant's actions into consideration

⇒ If the defendant has done everything he/she can to prevent an incident from ocurring, for example, then he/she will probably not be found to have been negligent

⇒ See, for example, Latimer v AEC Ltd. [1953]

⇒The court will not usually take into account D’s financial circumstances (i.e. lack of funds), HOWEVER see the case of Knight v Home Office [1990]

⇒The claimant must make out his/her on the balance of probabilities i.e. 51%. In other words, it must be shown that the defendant was more likely than not to have been in breach of his/her duty of care