Breach of Duty

Breach is a standard requirement that is set by the law and expects compensation to those injured if their behaviour falls below that standard. But sometimes it may not even be their fault if they fall below the standard

Cole v Davis-Gilbert [2007] EWCA Civ 396 CA per Scott-Baker LJ:

‘Accidents happen, and sometimes they are what can be described as pure accidents in the sense that the victim cannot recover damages for the resulting injury because fault cannot be established.’

Also it is possible for people to meet the standard of care expected (so not be in breach) and people still get injured. The law of Tort is not just about providing compensation when people get injured but also when people fall below the standard of care.

Blyth v Birmingham Waterworks Co. (1856) 156 E.R. 1047 per Alderson B.:

‘Negligence is the omission to do something which a reasonable man, guided upon whose considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’

Who is the Reasonable Person?

The reasonable person is not special in any sort or form. They are the average person on the street. The reasonable person is a concept, it does not exist. What we do is remove all idiosyncrasies from this person to provide an objective standard for all cases.

“The courts have consistently and correctly rejected the notion that the standard of care should be adjusted to take account of personal characteristics of the defendant.”

Dunnage v Randall [2016] QB 639, [130] per Vos LJ

An example – the standard for (inexperienced) drivers

Nettleship v Weston [1971] 2 QB 691 

The claimant agreed to give the defendant some driving lessons

The car was owned by the defendant's husband and did not have dual controls

Defendant was operating steering wheel and pedals, and the claimant was shifting gears using the gear stick. The car is not a standard-issued learning car but only has controls on the driver’s side.

Defendant panicked after turning left and mounted the pavement and hit a streetlamp

Claimant suffered a broken kneecap

The defendant acted as a learner would do, but did not drive as carefully or skilfully as a driver who had passed their test

Question that court must answer was if Weston had acted in the standard of care of a learner driver.

The standard of care owed to other road users, property owners near the highway and pedestrians

He must drive in as good a manner as a driver of skill, experience (meaning that we should not take into account that Weston was inexperienced as a viable excuse as the “reasonable person” would be experienced”) and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity

• Lord Denning

Therefore Weston is liable because she is inexperienced

Nettleship v Weston Lord Denning Dicta

“I take it to be clear that if a driver has a passenger in the car he owes a duty of care to him… .I should have thought not. But suppose that the driver has never driven a car before, or has taken too much to drink, or has poor eyesight or hearing: and, furthermore, that the passenger knows it and yet accepts a lift from him. Does that make any difference?... The driver owes a duty of care to every passenger in the car, just as he does to every pedestrian on the road: and he must attain the same standard of care in respect of each.”

Nettleship v Weston: A case study in policy factors

Loss allocation

Deterrence – This also acts as a deterrent for people to do things that they are inexperienced in doing (if there are consequences)

Insurance (“we are, in this branch of the law, moving away from the concept: "No liability without fault." We are beginning to apply the test: "On whom should the risk fall? " Morally the learner driver is not at fault; but legally she is liable to be because she is insured, and the risk should fall on her.” (Nettleship v Weston [1971] 2 QB 691at 700) One reason why Lord Denning says this particularly works is because all drivers are insured and so this is about risk allocation and who is better placed to bear the burden of the injury and since all drivers are required to be insured and so risk should fall on her.

Why not a subjective standard?

Nettleship v Weston per Lord Denning MR:

‘A learner driver may be doing his best but his incompetent best is not good enough.’

Wilsher v Essex Area Health Authority [1987] Q.B. 730, CA per Glidewell LJ:

‘The law requires the trainee or learner to be judged by the same standard as his more experienced colleagues. If it did not, inexperience would frequently be urged as a defence to an action for professional negligence.’