Breach

Question 1

What does it ask?

Answer 1

• When will D be in breach of his standard of care?

- Has D’s conduct fallen below the standard of care required by law?

Question 2

Two steps

Answer 2

1. How D ought to have behaved in these circumstances - what was the required standard of care in these circumstances?
2. The behaviour of D - did they, ipso facto, fall below the standard of care required?

Question 3

Test of reasonableness

Answer 3

‘you must take reasonable care’ (Donoghue v Stevenson)
the reasonable man standard was established in Blyth v Birmingham Waterworks (1856)
‘A traveller on the London underground’ (McFarlane v Tayside Health Board [1999])

It is an OBJECTIVE STANDARD.

Question 4

Objective standard

Answer 4

Personal behaviour is largely irrelevant (Glasgow Corp v Muir [1943]).

Question 5

Nettleship v Weston [1971]

Answer 5

Facts: a learner driver was out with a friend and lost control of the court, mounting a pavement and hitting a lamppost, breaking D’s kneecap.
Judgment: C owed the same standard of care as those of a driver of reasonable skill and care. “His incompetent best is not good enough. He must drive in as good a manner a a driver of skill, experience and care.”

Question 6

Birch v Paulson [2012]

Answer 6

Shows that the standard of care is not perfection. D was not guilty for not swerving away in time from a drunken pedestrian - in a perfect world he would have, nonetheless “the legal test is not a question… of perfection using hindsight.”

Question 7

Roberts v Ramsbottom [1980]

Answer 7

A man started driving after unknowingly having a stroke. He got worse over the course of a drive and crashed into C’s car. Despite not being morally at fault he fell below the standard of care required and was negligent.

Question 8

Mansfield v Weetabix [1998]

Answer 8

A lorry driver suffered from malignant insulinoma which starves the brain of glucose. Had he known of this condition he wouold have been liable for crashing into and damaging the claimant’s property. This created a modification to the objective standard where you are only liable if you knowingly are ‘suffering from a condition that impairs his ability to drive.’

Question 9

Children

Answer 9

A modification to the objective standard.
It is what is exepcted of that child at that age (Orchard v Le [2009]). In this case two boys playing in a playground accidentally injured a teacher but it was dismissed as the ‘horseplay’ of two 13 year old boys.
The question asked is whether a child of that age can be expected to have done any more than this child did (Gough v Thorne [1966]).
Similarly Mullins v Richards [1998] recognised that 15 year old girls will act irresponsibly, below the standard of regular people.

Question 10

Common practice and special skills

Answer 10

People exercising special skills that the reasonable man would not have (lawyer, plumber, doctor) are expected to act with a degree of competence.
In Phillips v Whiteley [1938] a jeweller could not be expected to do an ear piercing with surgery precision and was thus not liable for infection.

Question 11

The Bolam test

Answer 11

Professionals are given a wide latitude when acting within their competence.
In Bolam v Friern Hospital Management Committee [1957]a patient was not given relaxing drugs or physical restraints during electro-convulsive therapy. He was injured as a result and claimed a breach of standard of care from the doctor: it was judged that although most drs would have given the drugs and constraints, not all would, and thus he was acting ‘in accordance with a practice accepted as proper by a responsible body of medical men in that particular art.’

Question 12

Barristers

Answer 12

Moy v Pettman Smith [2005

Question 13

All professions

Answer 13

Arther Hall v Simons [2002]

Question 14

Bolitho v City and Hackney HA [1998]

Answer 14

This added the second test to the Bolam test. Common medial practices should not go unchcked and even accepted ones should be logical and reasonable. In this case a doctor incubated C and died from complications - it was accepted that had he not been incubated, he would not have died. It was found however that a nuumber of drs would also have incubated him, protecting the doctor from liability.

Question 15

The Bolam test (revised)

Answer 15

1) Has the doctor acted in accordance to a practice accepted as proper by a respectable body of medical opinion?
2) If yes, is the practice itself ‘reasonable’ and ‘logical’?

Question 16

Rank v Post

Answer 16

In Wilsher v Essex HA [1987] a junior doctor was holding the position of a senior houseman for a part of his training and in the process put C in an incubator with too much oxygen, devfeloping an incurable eye problem. The junior doctor is to be held to the same standard as the position he is occupying without exception. The courts defer to the standards of a particular profession to what is considered appropriate behaviour, so judges do not ‘play doctor’ for a time.

Question 17

Sidaway v Bethlem Royal Hospital [1985]

Answer 17

A claimant was paralysed, not due to negligence, from an operation which ran a tiny risk of paralysis. The doctor was not found liable for not informing her of the risk, interfering with patient choice which Bolam seeks to avoid.

Chester v Asfhar [2005] however shows that doctors breach their duty by not informing patients of very small risks as it interferes with their right to autonomy and dignity.

Question 18

Setting the standard of care

Answer 18

It is based on circumstances, not characteristics (Read v Lyons [1947]).

Question 19

Wooldridge v Sumner [1963]

Answer 19

In this case a photographer was injured while photographng a horse in a competition and it was held that provided the competition is being played within the rules of the game then they are not required to perform to any standard of care with regard to spectators.

Question 20

Factors taken into account when establishing the standard of care

Answer 20

• Probability or risk of injury
• seriousness of the injury
• Cost of taking precautions
• Social value of the activity

Question 21

Probability or risk of injury

Answer 21

Bolton v Stone [1951]: 6 balls had been hit out the ground in 30 years, no breach of the standard of care. “… an ordinary careful man does not take precautions against every foreseeable risk…”
Perry v Harris [2008]: a kid was severely injured from using a bouncy castle. While the risk of injury was high, the severity was not, so no breach of duty of those who hired the bouncy castle for their child’s bday.
Roe v Ministry of Health [1954]: a test of foresight is used, not hindsight. If the risk is low or unknown at the time of the accident a breach cannot be found. In this case an unknown chemcial percolated into an injection and left the claimant paralysed. “We must not look at the 1947 incident with 1954 spectacles.”

Question 22

Seriousness of the injury

Answer 22

The more serious the potential injury, the more likely D will fall below the standard of care (Beckett v Newalls Insulation [1953]).
Thus in Paris v Stepney BC [1951] the claimant was blinded in one eye after not being provided safety goggles, despite the low risk of a spark flying into his eye, the employer was found negligent.

Question 23

Cost of taking precautions

Answer 23

The lower the cost, the more reasonable that the person should take them.
Giving a warning is a low cost precaution - in Al-Kandari v JR Brown [1988] a firm of solicitors failed to warn a claimant about collecting her passport and they were found liable for the consequences that followed.
In Knight v Home Office [1990] the costs of monitoring a suicidal prisoner were so high that a breach of standard of care could not be found when a prison guard did not monitor a prisoner who then committed suicide.

Question 24

Social value of the activity

Answer 24

The greater the social value of the activity, the more likely the courts will find it reasonable to dispense with safety precautions. This applies to emergency situations such as Watt v Hertfordshire CC [1954] where it was found not to be a breach of care when safety equipment was not tied down in the back of a fire truck on the way to an emergency and injuring a worker.
Similarly in Marshall v Osmond [1983] a police officer in pursuit of a stolen vehicle negligently skidded into the back, injuring the claimant. While he normally would owe a regular standard ofcare, he believed he was in pursuit of a lawful arrest and was acting reasonably.
In sport event a lower standard of care is required (Blake v Galloway [2004]) but the standard is never eliminated [Cldwell v Maguire [2002]. A premier league footballer owes a higher standard of care than a sunday league player (Condon v Basi [1985]).

Question 25

Scout Association v Barnes [2010]

Answer 25

A boy was injured in a scouts game but the CA found the defendant negligent as turning off the lights for a game of ‘objects in the dark’ did not justify the added value of the activity by having it in the dark.

Question 26

A balancing act

Answer 26

All four of these factors are balanced against each other as was noted in Tomlinson v Congleton BC [2004].

Question 27

The COmpensation Act 2006

Answer 27

It clarifies but adds nothing to the common law of standard of care as stated in Barnes.

Question 28

Establishing breach

Answer 28

In road accidents the burden is on the defendant to show he was not negligent (s11 of the Civil Evidence Act 1968).
Thus, if a standard of care is estbalished, it is an objective test if something under the control of the defendant breaches that standard of care.
A hotel will thus not be liable for someone throwing furniture out of their window (Larson v St Francis Hotel [1948]).