Breach of Duty and the Standard of Care

In one line

Breach is failing to do what a reasonable person would have done, and the standard rises with the danger, the skill professed and the price charged.

In the wording a student can write in an exam: a duty of care is broken where the defendant fails to come up to the standard of the reasonable person, which is an objective standard measured by what a person of ordinary prudence would have done in the circumstances; the standard is fixed by the magnitude of the risk, the seriousness of the injury threatened, the utility of the defendant's conduct and the cost of precautions, it is raised where the defendant professes a special skill, and it is not lowered by the defendant's inexperience.

The reasonable person

The standard is that of the reasonable person: not the most cautious person imaginable and not the average person with all his failings, but a person of ordinary prudence in the defendant's position.

Three consequences follow, and each is examinable.

The standard is objective. A learner driver is judged by the standard of a competent driver, and inexperience is no excuse.

The standard takes account of the circumstances, not of the person. A doctor is judged as a doctor and a bus driver as a bus driver, but neither is judged by what he personally could manage.

Compliance with common practice is strong evidence but not conclusive. A practice may itself be careless, though a court will not readily say so.

The four factors that fix how much care is required

1. The magnitude of the risk, which is the likelihood of harm occurring. The more probable the harm, the more care is required.

2. The seriousness of the injury threatened. Where the possible harm is grave, more care is required even if the risk is small. A person carrying acid must take more care than a person carrying water, and a person known to be blind in one eye must be protected against a risk to the other.

3. The utility of the defendant's conduct. Some risks are worth taking. An ambulance driven fast to save a life is judged differently from a car driven fast for pleasure.

4. The cost and practicability of precautions. The law does not require a defendant to eliminate every risk regardless of expense; it requires precautions a reasonable person would take, weighing the risk against the burden.

The professional standard

A person who professes a special skill is judged by the standard of an ordinarily competent member of that profession. This is the Bolam standard, and the Supreme Court adopted it for India.

Facts. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005. A patient in a hospital at Ludhiana had difficulty in breathing at night; no doctor came for twenty to twenty-five minutes, and when two came the oxygen cylinder connected was, according to the complaint, empty. The patient died and the doctors were prosecuted for causing death by a rash or negligent act.