2B.2.3 Breach of duty

Question 1

Once it has been showed that a duty of care is owed, what must the C do next?

Answer 1

Prove the duty of care had been breached.

Question 2

Different standards of care

Answer 2

• Reasonable person
• Above the reasonable person
• Lower than the reasonable person

Question 3

What is the reasonable person?

Answer 3

The standard is the objective standard of the “reasonable person” (average, normal person).

This is “The man on the Clapham Omnibus” / The ordinary man on the street.

Question 4

Who is lower than the reasonable person?

Answer 4

• Learners
• Children
• Inexperienced people
• People with special needs

Question 5

Who is higher than the reasonable person?

Answer 5

Highly skilled professionals.
e.g. Doctors

Question 6

Which case established the special standard of care?

Answer 6

Bolam v Friern Hospital (1957)

Question 7

Bolam v Friern Hospital (1957)

Answer 7

C signed a consent form for electro-convulsive therapy but was not warned this procedure could potentially cause bone damage. C experienced bone damage (broken pelvis).

This was judged by the standard of the reasonable doctor and because most doctors would have used the same treatment, no duty of care was owed.

The case led to the following questions:
- Does the Ds conduct fall below the standard of the ordinary competent member of that profession?
- Is there a substantial body of opinion within the profession that would support the course of action taken by the D?

Question 8

Montgomery v Lanarkshire Health Board (2015)

Answer 8

C was not advised of the risks of the baby developing cerebral palsy during pregnancy.

Held: D under a duty to disclose the risks of a major obstetric emergency, which involves significant risks to the mother’s health and obtain consent.

Question 9

Which case altered the approach from Bolam v Friern?

Answer 9

Montgomery v Lanarkshire Health Board (2015)

Question 10

Case for standard of care owed by a learner

Answer 10

Nettleship v Weston

Question 11

Nettleship v Weston

Answer 11

Nettleship v Weston: A learner driver hit into a lamppost during a driving lesson.

Held: learner drivers should be judged at the standard of the reasonable driver, NOT the reasonable learner driver.

Question 12

What standard of care would a junior doctor owe?

Answer 12

The same principle as Nettleship v Weston would apply.
So it would be the standard of the reasonable doctor.

Question 13

What standard of care would a child owe?

Answer 13

A lower standard of care with the exception of Mullin v Richards (standard of the reasonable child of the same age)

Question 14

Mullin v Richards

Answer 14

15-year-olds were fencing with rulers. One snapped, blinding one of the girls.

It was held: Standard of the reasonable child of the same age.

Question 15

Magnitude of risk

Answer 15

Magnitude = Likelihood + Seriousness

• How likely was this harm to happen?
• If it happened, how serious would it be?

Question 16

Case for likelihood

Answer 16

Bolton v Stone (1951) & Miller v Jackson (1977)

Question 17

Case for seriousness

Answer 17

Paris v Stepney Borough Council (1951)

Question 18

Case for likelihood and seriousness

Answer 18

Haley v London Electricity Board (1965)

Question 19

Bolton v Stone (1951) & Miller v Jackson (1977)

Answer 19

Likelihood of harm:
- Cricket matches where balls had been hit out of the grounds causing damage.
- Bolton = Only happened 6 times in 90 years so no breach of duty established.
- Miller = Happened 8-9 times per seasons so a breach of duty was established.

Question 20

Paris v Stepney Borough Council (1951)

Answer 20

Employee was blind in one eye. Mechanic was given no protection for eyes. Metal went into his only good eye, blinding him completely. A higher duty of care was owed as the seriousness of harm was higher. Also, a higher standard of care is owed to someone with a pre-existing condition.
Held: Where the risk is small, Ds will not have to take as great precautions.

Question 21

Haley v London Electricity Board (1965)

Answer 21

Electricity cables ran in a trench along a path. There were signs but no barriers. A blind person fell into the trench. Held: D owed a duty and the magnitude of risk was higher because blind people were known to use that roads. A special standard of care because claimants has special characteristics.

Question 22

Precautions

Answer 22

The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk.

Question 23

Case for precautions

Answer 23

Latimer v AEC (1953)

Question 24

Latimer v AEC (1953)

Answer 24

A factory floor was flooded with oily liquid, leaving it slippery. AEC put sawdust down but did not have enough to cover the whole floor.

The court ruled that it was not practicable for AEC to cover the whole floor and deemed it disproportionate based on the small risk. (E.g. “Using a sledgehammer to open a nut”).

Question 25

Unknown risk

Answer 25

If the risk of harm is not known, there can be no breach.

Question 26

Case for unknown risk

Answer 26

Roe v Minister of Health (1954)

Question 27

Roe v Minister of Health (1954):

Answer 27

It was not known to science that invisible cracks could occur in the glass tubes. This caused anaesthetic to become contaminated by the cleaning solution. C was paralysed by the contaminated anaesthetic.

Held: no risk, if risk is unknown.

Question 28

Risk in an emergency

Answer 28

In an emergency, greater risks can be taken, and lower standard of care can be accepted. Courts take a realistic view of dealing with emergencies.
- They accept in hindsight; the situation could have been dealt with differently but accept that speedy action was taken without the benefit of hindsight.
- E.g. Watt v Hertfordshire County Council (1954)

Question 29

Social value v Risk

Answer 29

Risks must be proportionate to social value.
- E.g. An Ambulance jumping a red light, Police cars speeding

Question 30

Cases for social value v risk

Answer 30

• Watt v Hertfordshire County Council
• Day v High Performance sports (2003)

Question 31

Watt v Hertfordshire County Council

Answer 31

C was injured by the wrong equipment used by fire service.

Held: no breach as the social value of saving life was worth taking higher risk with equipment.

Question 32

Day v High Performance sports (2003)

Answer 32

A climber got stuck on an indoor wall. The manager tried to rescue her but she fell.

Held: no breach of duty as it was an emergency and the social value of saving a life was worth the risk.

Question 33

Proving breach of duty

Answer 33

• The burden is on the claimant to prove the breach on the balance of probabilities.
• It may be res ipsa loquitur, which means “it speaks for itself” (it’s obvious).

Question 34

Case for duties for acts by 3rd parties

Answer 34

Smith v Littlewoods (1987)

Question 35

Smith v Littlewoods (1987)

Answer 35

A cinema was burned down by arsonists, which burned down the next-door café. The claim failed. There is a general duty, unless:
- There is a special relationship established.
- The defendant negligently created danger and reasonably foreseeable that the 3rd party would interfere.
- The defendant knew the 3rd party had created risk and didn’t take appropriate steps to stop it.