Negligence: Duty of Care and Breach of the Standard
The duty question
A negligence claim requires duty, breach, causation of damage, and absence of a recognised defence. Duty is a question of law; breach is a question of fact judged against the standard of the reasonable person. Established categories (road users, doctors and patients, employers and employees, manufacturers and consumers) raise duty almost automatically. Novel situations invite a three-stage test: whether damage was reasonably foreseeable, whether the parties were sufficiently proximate, and whether it is fair, just and reasonable to impose a duty. Policy-based denials of duty (for example, against advocates or witnesses in litigation) are a favourite trap.
Setting the standard
Breach asks whether the defendant fell below the standard of the reasonable person in the circumstances. Professionals are judged against a responsible body of professional opinion, not against perfection; a doctor is not negligent merely because another expert would have acted differently. Children are judged against a child of similar age. Learners (including learner drivers) are held to the ordinary competent standard. The standard is not lowered for inexperience.
The risk calculus
Courts weigh the magnitude of risk, the practicability and cost of precautions, the social utility of the activity, and any emergency. A small risk of grave harm can require precautions; a trivial risk may not. Rescuers are not expected to weigh risk precisely. Questions often test whether a reasonable person would have taken a specific precaution, not whether some precaution existed.
Worked rule of thumb
Ask: what is the standard, and did the defendant fall below it? A learner driver who drifts across a junction is judged as a competent driver, not as a beginner, so the standard is breached. A surgeon who follows a responsible body of opinion is not in breach even if the outcome is poor.
Traps
Do not confuse duty with breach. Foreseeability of some damage establishes duty; foreseeability of the precise injury is not required. Remember that breach is assessed at the time of the act, without hindsight.