2 - Negligence: Breach of Duty

Question 1

What are the three elements which the courts consider when determining whether a defendant has commited the tort of negligence?

Answer 1

1. Did the defendant owe the claimant a duty of care?
   Yes: Consider breach of duty.
   No: There is no liability in negligence.
2. Was the defendant in breach of that duty?
   Yes: Consider causation.
   No: There is no liability in negligence.
3. Did the defendant’s breach of duty cause damage to the claimant?
   Yes: Consider defences.
   No: There is no liability in negligence.

Question 2

What is the two stage test for determining whether the defendant has breached their duty of care?

Answer 2

Whether a defendant has breached a duty of care is a question of fact for the judge to decide. The issue of breach involves the application of a two- stage test:

• The court first assesses how the defendant ought, in the circumstances, to have behaved,
  ie what standard of care the defendant should have exercised (a question of law).
• The court then decides whether the defendant’s conduct fell below the required standard
  (a question of fact)

Question 3

What is the standard of care in determining breach of the duty of care?

Answer 3

• The defendant’s conduct is measured against the required standard of care to determine if there is a breach.
• The defendant must meet the standard of ‘the reasonable person’, meaning they are required to take as much care as would be expected from a reasonable person in similar circumstances.

Question 4

What is the nature of the ‘reasonable person’ test when determining breach of duty of care?

Answer 4

• The reasonable person is described represents the average person who is neither overly intelligent nor overly foolish.
• The test is objective and impersonal; the courts do not consider personal attributes of the defendant but rather ask what a reasonable person would have foreseen in similar circumstances.
• It is not about whether the defendant did their best, but whether they met the standard expected of a reasonable person.

Question 5

How do unexpected disabilities affect the standard of care when determining breach of duty?

Answer 5

• If a defendant suffers from an unexpected disability, such as a sudden impairment of consciousness, they will not be in breach of the standard if they acted as a reasonable person unaware of their condition.
• Similarly, if a driver suffers a sudden heart attack, they will not be liable.
• However, if the defendant knew about their medical condition and unreasonably undertook an activity that caused harm, they could be held liable.

Question 6

What are the special standards for skilled defendants when determining breach of duty?

Answer 6

• In Bolam v Friern Hospital Management Committee (1957), it was established that a skilled defendant, like a doctor, is held to a higher standard than the reasonable person in the street.
• A doctor must demonstrate the same degree of skill expected from a reasonable doctor.
• The Court also held that if a defendant’s actions align with a practice accepted by a responsible body of professionals, they will not be considered negligent.
• This principle applies beyond doctors to anyone exercising a special skill, but the court ultimately decides if a skilled defendant acted reasonably.
• Otherwise called ‘state of the art’ defence.
• Supreme Court has confirmed that the Bolam Test does apply to the obligation to take reasonable care to advise the patient of any reasonable alternative treatments.

Question 7

What was established in Bolitho v City and Hackney Health Authority (1997) regarding professional opinion when establishing breach of duty of care?

Answer 7

• The court acknowledged that in some cases, the professional opinion relied on by the defendant might not withstand logical analysis.
• Thus, if a claimant can demonstrate that the defendant’s professional opinion is unreasonable, the court can find the defendant in breach of duty, even if some opinion supports the defendant’s actions.

Question 8

How does the standard of care apply to the under-skilled defendant?

Answer 8

• In Nettleship v Weston (1971), it was held that a learner driver owes the same objective duty of care to passengers as any other driver. The standard is not lowered due to the learner’s inexperience; thus, the learner was found liable for the crash.
• In Wilsher v Essex Area Health Authority (1987), it was decided that a junior doctor must meet the standard of a competent doctor in the same post, regardless of their inexperience.

The standard applies to the task or post, not the individual’s experience.

Question 9

What is the court’s expectation for amateur householders when determining breach of duty of care?

Answer 9

• Even when performing odd jobs around the house, courts require a certain level of skill from householders, for example equivalent to that of a reasonably competent amateur carpenter.
• If a householder attempts a job beyond their capabilities, which is typically done by a professional, they may be judged negligent for attempting it without assistance.

Question 10

Provide a summary of the position on defendants who hold special skills and those who lack skill or experience.

Answer 10

The test for the standard of care in negligence is an objective, impersonal one. In each case the court will determine the standard required for the activity or task in question.

The defendant must meet that standard and no allowance will be made for his lack of qualification, skill, or experience.

It is relevant to look at whether the defendant has held themselves out as possessing a particular level of skill. If a defendant presents themselves as a specialist, eg a consultant surgeon rather than a
general practitioner, then they will be expected to meet that higher standard. By undertaking a task which requires a particular level of professional skill, a defendant
holds themselves out as having the necessary expertise and must meet the standard
required for the task they have undertaken to perform.

If a defendant does not profess to have a particular professional skill (as in Wells v Cooper), they may not be required to meet a higher professional standard. However, they must still meet the minimum standard required by the task undertaken. Moreover, if they
undertake a task which requires a special skill which they do not possess, that in itself is
likely to be negligent.

Question 11

What is the standard of care for child defendants in negligence cases?

Answer 11

The standard of care for child defendants is adjusted according to their age.

In Mullin v Richards (1998), the Court of Appeal held that the question is whether an ordinary, prudent, and reasonable child of the same age would have realised the risk of injury.

A child defendant is expected to show the care that can reasonably be expected of an ordinary child of the same age. There is no fixed age below which a child cannot be liable in negligence; however, very young children are rarely found liable as they are less likely to foresee harm to others.

Question 12

What is required for a child under 18 to be involved in legal proceedings in tort?

Answer 12

A child under 18 cannot be sued or sue unless they have an adult to represent them, known as a litigation friend. This is typically one of the child’s parents.

Furthermore, consideration must be given to whether it is worthwhile to sue a child if they lack the financial means to pay any judgment.

Question 13

In assessing whether the defendant has fallen below a reasonable standard of care, what are the two factors which the court needs to weigh up?

Answer 13

In general terms, in assessing whether or not a defendant has fallen below a reasonable
standard of care, the court needs to weigh up:

• The risk created by the defendant’s activities (likelihood of injury); and
• The precautions which the defendant ought to reasonably have taken in response to that risk

Question 14

What two elements are considered when assessing the likelihood of an injury in negligence cases?

Answer 14

The assessment involves:

• Likelihood of injury: How likely was it that the defendant’s actions could cause an injury?
• Severity of injury: If an injury was caused, how serious was it likely to be?

The greater the chances of injury from the defendant’s activity, the more precautions must be taken.

Example: In Bolton v Stone, a claimant was injured by a ball hit out of a cricket ground. The court held that the defendants were not in breach of duty as the risk of injury was very unlikely.

Question 15

How does the likelihood of an injury influence the defendant’s duty of care?

Answer 15

The greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take.

If the risk of injury is small, a reasonable person may choose to neglect it, but this must be weighed against other factors.

Question 16

What does the principle of “reasonable probability” entail in assessing risk when determining breach of duty?

Answer 16

The duty of care requires defendants to guard against “reasonable probabilities, not fantastic possibilities.” This means that while defendants must take precautions against likely risks, they are not expected to guard against highly improbable or unrealistic events.

Example: In Fardon v Harcourt-Rivington, the defendant left a dog in a parked car, which caused an injury from shattered glass. The court found this to be a fantastic possibility, thus the defendant was not liable.

Question 17

How does the potential severity of an injury affect the standard of care expected from a defendant?

Answer 17

The more serious the potential harm to the claimant, the greater the care the defendant must take to prevent it. A high risk of serious injury increases the expectation of reasonable precautions.

Example: In Paris v Stepney Borough Council, the claimant, who was blind in one eye, was not provided safety goggles, leading to the loss of sight in his other eye. The court held the defendant in breach of duty due to the severe potential injury.

Question 18

What factors do courts consider regarding the cost and practicability of precautions in negligence cases?

Answer 18

Cost of precautions: Courts assess what practical measures the defendant could have reasonably taken to reduce the risk and the associated costs.

Reasonableness: If the risk could be significantly reduced at a low cost, failing to do so may be deemed unreasonable. Conversely, if the cost is high for a minimal reduction in risk, it may be reasonable to take no action.

Question 19

How does the purpose of a defendant’s activity influence their liability in negligence (social utility)?

Answer 19

The societal value of the defendant’s activities affects liability; if the activity is in the public interest, the defendant is less likely to be held liable. Activities with significant social utility may justify a greater degree of risk-taking.

Example: In Watt v Hertfordshire County Council, firemen used an ordinary lorry to transport heavy equipment in an emergency, leading to injury when the equipment slipped. The court held that the life-saving purpose justified the risk taken.

Question 20

How can compliance with common practice in a profession impact a defendant’s liability?

Answer 20

Compliance with accepted practices may serve as strong evidence against negligence claims. However, such compliance is not conclusive proof of non-negligence, as the accepted practices themselves may be negligent.

Example: In Bolam v Friern Hospital Management Committee, compliance with accepted medical practices was not deemed negligent, but in Re The Herald of Free Enterprise, the common practice of ferry captains leaving bow doors open was found negligent.

Question 21

What role does the current state of knowledge play in determining negligence?

Answer 21

The standard of care is judged based on the current knowledge available at the time. Defendants are expected to act according to what a reasonable person would foresee, given the state of knowledge at the time of the incident.

Example: In Roe v Ministry of Health, a patient was permanently paralysed due to contaminated anaesthetic, but since the risk was unknown at the time, the court found the defendant was not in breach of duty.

Question 22

What is the burden of proof in a negligence claim regarding breach of duty?

Answer 22

The burden of proving that the defendant has breached the duty of care lies with the claimant.

The claimant must prove their case ‘on a balance of probabilities’, meaning it is more likely than not that the defendant was in breach of duty.

This standard contrasts with the stricter standard of proof in criminal cases, which is ‘beyond reasonable doubt’.

Question 23

How can a claimant typically prove a breach of duty in negligence claims?

Answer 23

The most common way for a claimant to prove breach of duty is through witness evidence, which includes:

Witnesses of fact: Individuals who directly observed the accident, providing testimony that shows the defendant acted below the standard expected.

Expert witnesses: Specialists who can testify about the normal practices or level of precautions expected in a specific field. For example, a medical expert could explain that a doctor failed to perform the necessary tests before treatment.

Question 24

What is the principle of res ipsa loquitur and when can it be applied?

Answer 24

Res ipsa loquitur, meaning ‘the thing speaks for itself’, assists claimants when direct (witness) evidence of a breach of duty is absent.

It may be applied when:
- The thing causing the damage was under the control of the defendant or someone they are responsible for.
- The accident is such that it would not normally happen without negligence.
- The cause of the accident is unknown to the claimant, leaving them without direct evidence of the defendant’s failure to exercise reasonable care.

Question 25

What are the conditions for applying res ipsa loquitur, and how does it affect the burden of proof?

Answer 25

The conditions for applying res ipsa loquitur are rarely met in most cases.

When they are met:
- It raises a prima facie inference of negligence against the defendant.
- The defendant must then provide a reasonable explanation of how the accident could have occurred without negligence.

They can do this by either:
- Producing evidence of how the accident happened and that it was not due to negligence, or
- Demonstrating that they used all reasonable care at all times.

Question 26

What is the effect of Section 11 of the Civil Evidence Act 1968 on civil negligence claims (presumption after being convicted of a criminal offence)?

Answer 26

Under Section 11 of the Civil Evidence Act 1968, if a defendant has been convicted of a criminal offence, they are presumed to have committed that offence in any subsequent civil proceedings.

This presumption can aid claimants in proving a defendant has fallen below a reasonable standard of care, particularly if the conviction involved careless conduct.

For instance, if a defendant is convicted of driving without due care and attention, the claimant can use this conviction as evidence of the defendant’s failure to take reasonable care while driving in a subsequent civil claim.

Question 27

When may the presumption from Section 11 of the Civil Evidence Act 1968 not assist a claimant?

Answer 27

The presumption will not always help a claimant. For example, if a driver is convicted of driving without insurance, this conviction does not provide evidence that the
defendant drove carelessly.

Thus, the relevance of the criminal conviction to the negligence claim is crucial in determining whether it can be used as evidence of a breach of duty.

Question 28

Provide a summary of how a claimant might prove breach of duty in tort. (include summary flowchart in table notes)

Answer 28

The claimant has the burden of proving that the defendant has breached their duty of care. The claimant needs to prove this on the balance of probabilities.

The standard of care is that of the reasonable person in the defendant’s position. This is
an objective standard. For example, if the defendant is a driver, the defendant needs to reach a standard of the reasonable competent driver.

In deciding whether there has been a breach, the courts analyse the facts of the case and consider the factors considered above, eg magnitude of the risk.

In limited circumstances, the maxim res ipsa loquitur may help the claimant. In other circumstances, a relevant criminal conviction will assist the claimant.