Liability in negligence: the duty of care, breach of duty (the objective standard and the risk factors), and damage (factual causation, remoteness and intervening acts).

What this dot point is asking

OCR Component 2 Section B requires you to know the tort of negligence: a failure to take reasonable care that causes foreseeable harm. A claimant must prove three elements: that the defendant owed a duty of care, that the defendant breached that duty, and that the breach caused reasonably foreseeable damage. The skill is to apply each element to a scenario for AO2.

The answer

Duty of care

Breach of duty

A defendant breaches the duty if they fall below the standard of the reasonable person carrying out that activity, judged objectively (Blyth v Birmingham Waterworks). The standard is adjusted for some defendants:

• Professionals are judged by the Bolam test: they are not negligent if they acted in accordance with a responsible body of professional opinion (refined by Bolitho).
• Learners are judged by the standard of the competent, qualified person, not a beginner (Nettleship v Weston).
• Children are judged by the standard of a reasonable child of the same age (Mullin v Richards).

In deciding breach the court weighs risk factors: the size of the risk (Bolton v Stone, a very small risk), the seriousness of potential harm (Paris v Stepney, a one-eyed worker), the cost and practicality of precautions (Latimer v AEC) and the social utility of the activity (Watt v Hertfordshire, an emergency rescue).

Damage

The breach must cause reasonably foreseeable damage. Two stages:

• Factual causation: the "but for" test. But for the defendant's breach, would the harm have occurred? In Barnett v Chelsea and Kensington Hospital, the patient would have died anyway, so the hospital's negligence did not cause the death.
• Legal causation (remoteness): the type of harm must be reasonably foreseeable (The Wagon Mound (No 1)). The thin-skull rule means the defendant must take the claimant as found, so liability extends to the full extent of an unusually severe injury (Smith v Leech Brain). An intervening act (a free, voluntary act of the claimant or a third party) may break the chain of causation.

Examples in context

A strong scenario answer applies duty, breach and damage in turn and concludes on liability.

Try this

Q1. Explain the test for establishing a duty of care in negligence, including the position for established and novel duties. [12 marks]

• What the marker wants. Precise AO1: the neighbour principle (Donoghue v Stevenson); established duties simply apply (Robinson); novel duties use the Caparo factors (foreseeability, proximity, fair, just and reasonable).

Q2. A surgeon, Dr Khan, follows a recognised but not universal surgical technique; the patient suffers harm. Advise whether Dr Khan has breached his duty of care. [20 marks]

• Cue. An AO2 application of the Bolam test: a professional is not in breach if a responsible body of medical opinion supports the technique (Bolam), subject to that opinion being logical (Bolitho), so conclude on whether the technique meets that standard.