Negligence Liability

“Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective, however, there may be slight variations to this”. While using the objective test also referred to as the reasonable man test to determine negligence in breach of duty, the court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from this hypothetical character is objective; not taking into account the characteristics or weaknesses of the defendant

In looking at risk, the likelihood of injury or damage should be considered. Generally, the less likely injury or damage may be caused, the lower the standard of care required. However, it may not always be reasonable to ignore a small risk. In Haley vs London electricity board 1965 the House of Lords found that it was reasonably foreseeable that unaccompanied blind pedestrians may walk that route and therefore the defendant should have taken extra precautions. The reasonable person should not ignore the risk to blind pedestrians, especially due to the gravity of the potential injury and the limited cost of more robust precautions although it was common practice at the time to leave a hammer to warn pedestrians that work is being done. The seriousness of possible injury or damage caused should also be taken into account by a reasonable person. The more serious the potential injury, the greater the standard of care required. Similarly, if the defendant is aware that a particular individual is at an enhanced risk of serious injury, this too increases the obligation to take care. The hypothetical reasonable person in the position of the defender will take into account the cost of precautions and balance this against the probability of risk of harm and the seriousness of any injuries likely to be sustained. The defender's duty is not to be negligent; it is not to act

These factors include likelihood of harm, seriousness of harm, cost of prevention and the utility of the defendants conduct. These factors help rule cases concerning breach of duty which cannot be judged by solely using the bolam test. That being so the judgement used to determine breach of duty changes depending on the peculiar circumstances in the case. For example in Bolam vs Friern 1957 where it was held that where there is divided opinion within a profession as to the appropriate course of action in a particular situation then a defendant is not to be treated as in breach of duty by following one body of opinion rather than the