9.1 Duty of Care and Breach

SQE1 FLK1 Tort questions on negligence almost always start with a client who has been injured, frightened, or left out of pocket. This independent OpenExamPrep chapter trains you to apply the functioning legal knowledge listed in the official FLK1 specification: duty of care (the general standard and the professional standard) and breach, before later sections add causation, remoteness, specialised losses, defences, and vicarious liability. You are not being asked to recite every appellate speech. You are being asked to choose the correct legal starting point on realistic facts and to know which leading authorities still govern the result.

Why duty is the first gate

A defendant is not liable in negligence merely because someone was careless in the colloquial sense. The claimant must show that the defendant owed a duty of care to this claimant, that the defendant breached the duty by falling below the required standard, that the breach caused recoverable loss, and that the loss is not too remote. If duty fails, the claim fails, even if the defendant's conduct was shoddy.

Donoghue v Stevenson [1932] AC 562 remains the foundation. Mrs Donoghue drank ginger beer bought by a friend. A decomposed snail was in the opaque bottle. She had no contract with the manufacturer. The House of Lords held that a manufacturer owed a duty to the ultimate consumer. Lord Atkin's neighbour principle still appears in functioning answers: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — persons so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts or omissions called in question.

Established categories versus novel duties

In practice, most SQE1 facts fall into an established duty situation. Drivers owe a duty to other road users. Employers owe a duty to employees (primary liability is covered in section 9.3). Doctors and other clinicians owe a duty to their patients. Solicitors owe a duty to their clients. Occupiers owe statutory duties (a separate FLK1 topic). Manufacturers owe a Donoghue duty to consumers. When the facts sit inside a recognised category, do not invent a three-stage inquiry. The duty exists; move to standard and breach.

Caparo Industries plc v Dickman [1990] 2 AC 605 is the test for novel duty questions. The court asks whether (1) harm of the relevant type was reasonably foreseeable, (2) there was proximity between claimant and defendant, and (3) it is fair, just and reasonable to impose a duty. Caparo itself concerned auditors and investment loss. The three-stage formulation was later used more widely, and then confined.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 is the modern correction you must know at functioning level. The Supreme Court held that Caparo is not a universal three-part hurdle for every negligence claim. The court starts with existing authority and develops the law incrementally. Police officers who, during an arrest, knocked over a nearby pedestrian could owe a duty; the old slogan that the police never owe a duty of care is too crude. On the exam, if a person is physically injured by a positive negligent act, you are usually in ordinary Donoghue territory, not a policy-barred omission case.

Omissions are different. There is generally no duty to rescue a stranger (Smith v Littlewoods Organisation Ltd). Exceptions include a defendant who assumes responsibility, has control over a third party or a hazard, or creates the danger. Public-authority omission cases are fact-sensitive; do not assume a council or the police must act merely because intervention would have helped.

The general standard of care

Breach is judged against the reasonable person in the defendant's position (Blyth v Birmingham Waterworks Co). The test is objective. A learner driver is judged by the standard of a reasonably competent driver (Nettleship v Weston [1971] 2 QB 691). Inexperience is not a defence against the injured third party. Children are judged by the standard of a reasonable child of the same age (Mullin v Richards).

Courts then weigh the practicalities of the activity:

• Likelihood of harm: a cricket ball hit out of the ground once in many years did not require a higher fence in Bolton v Stone [1951] AC 850.
• Gravity of injury: extra care was required for a one-eyed worker in Paris v Stepney Borough Council [1951] AC 367.
• Cost and practicability of precautions: spreading sawdust after a flood was enough in Latimer v AEC Ltd [1953] AC 643; the factory did not have to close.
• Social utility: an emergency fire-engine run may justify a risk that would be unacceptable in ordinary driving (Watt v Hertfordshire County Council).

Res ipsa loquitur (the thing speaks for itself) can help a claimant who cannot say exactly how the accident happened, if the thing was under the defendant's control and accidents of that type do not ordinarily occur without negligence (Scott v London and St Katherine Docks Co). It is an evidential tool, not a separate tort.

The professional standard: Bolam, Bolitho and Montgomery

Where the defendant is exercising a professional skill, the general reasonable-person standard is replaced, for the skilled task, by the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). A doctor is not negligent if they acted in a way that a responsible body of professional opinion would regard as proper, even if another body disagrees. Bolitho v City and Hackney Health Authority [1998] AC 232 adds a judicial safety-valve: the court is not bound by expert evidence that cannot withstand logical analysis. Bolam is not a rubber stamp.

Montgomery v Lanarkshire Health Board [2015] UKSC 11 is the trap. It governs the clinician's advisory role when obtaining consent, not the Bolam question of how to perform surgery. The doctor must take reasonable care to ensure the patient is aware of material risks of injury and of reasonable alternative treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that this particular patient would. A diabetic woman of small stature was not told of a 9–10% shoulder-dystocia risk associated with vaginal delivery; that was a breach of the disclosure duty. On SQE1 facts, if the complaint is that the patient was not told, start with Montgomery. If the complaint is that the operation was performed incompetently, start with Bolam and Bolitho.

Applying the law on typical FLK1 facts

A newly qualified solicitor advising after a road accident should not write a mini-dissertation. Identify the relationship (driver and pedestrian is established). Ask whether the driving fell below a competent driver. Leave professional-standard analysis for clinicians, solicitors, and other skilled defendants. Leave Caparo for truly new relationships, especially pure economic loss and psychiatric harm, which section 9.3 covers.

Common errors: using Caparo on a straightforward road-traffic collision; applying Bolam to a consent conversation; allowing a learner to be judged as a learner vis-à-vis an injured pedestrian; treating res ipsa as automatic liability; and treating a police-omission complaint as if it were the same as a police officer knocking someone over during an arrest.