H418/02 - Breach and reasonable care

The objective standard

Breach of duty means falling below the legally required standard of care. The ordinary comparison is with the reasonable person in the relevant circumstances. OCR's traditional phrase “reasonable man” describes this legal standard, not a rule restricted to male defendants. It is objective because the defendant's personal belief that they did their best does not determine whether their conduct was careful enough.

In Nettleship v Weston (1971), a learner driver injured the person teaching her after losing control. The Court of Appeal applied the competent and experienced driver's standard, rather than lowering it to the learner's individual ability. Its judgment links predictable road-user protection with this objective standard. Legal fault can therefore exist without deliberate harm or equivalent moral blame.

Objective does not mean ignoring the activity or situation. A person undertaking skilled work is compared with reasonable competence in that skill; an emergency affects what precautions are feasible; an ordinary child's conduct can be compared with a reasonable child of the relevant age, rather than automatically with an adult. But someone choosing to drive on the public road cannot reduce the driving standard merely by being inexperienced. The Owens v Lewis (2024) judgment explains the distinction between circumstances of a young person and the activity-based driving standard.

Original example: an inexperienced adult driver fails to watch a crossing. “I tried harder than an experienced driver” does not answer whether the required care was taken. Conversely, a careful driver encountering a hazard that reasonable care could not avoid is not necessarily in breach merely because an accident occurred. Evaluate what ought reasonably to have been done using the circumstances and knowledge at the time, rather than perfect hindsight.

Probability and seriousness of harm

Reasonable precautions depend partly on how likely harm is and how serious it could be. These are different factors. A modest chance of catastrophic injury may require more protection than the same chance of a trivial loss. Courts assess foreseeable risk before the accident, not assume that occurrence proves a large prior probability.

In Bolton v Stone (1951), a cricket ball struck a person outside the ground. Balls had only very rarely escaped over the boundary, and injury to someone outside was extremely unlikely. The House of Lords found no negligence on the circumstances proved. The judgment shows that a small foreseeable possibility does not automatically require eliminating the activity. It does not establish that cricket clubs never owe care or that every “rare” event can be ignored. A changed boundary, more frequent escapes or a busy road could change the assessment.

In Paris v Stepney Borough Council (1951), an employee with sight in only one eye was injured when metal entered his good eye. His employer knew of the disability but had not supplied goggles. The House of Lords treated the greater seriousness of the possible injury—total blindness—as relevant to the precautions required. The judgment was delivered in December 1950 and is commonly cited by its 1951 report year. A known vulnerability can matter even if the probability of an accident is no higher.

Original example: a workshop knows that a worker has one functioning eye and that grinding can throw fragments. A cheap eye shield may be reasonable because the potential consequence is severe. Changing the fact to work involving no reasonably foreseeable fragment risk would change the analysis; vulnerability does not make an employer an insurer against unrelated harm.

Precautions and social value

The court considers the cost and practicality of precautions alongside the risk. The question is reasonable care, not whether any imaginable measure could have prevented harm. A cheap, effective safeguard against serious danger is hard to omit reasonably. A vastly burdensome measure addressing an extremely small risk may not be required. Cost is relevant but does not automatically excuse exposing people to serious preventable danger.