Breach of Duty Flashcards
Breach of duty
The second element of negligence is breach of duty. Having established that a duty of care
exists in law and in the particular situation, the next step in establishing liability is to decide
whether the defendant is in breach of that duty. Breach of a duty of care essentially means that the defendant has fallen below the standard of behavior expected of someone undertaking the activity. concerned.
Blyth v Birmingham Waterworks (1856)
Facts
A wooden plug in a water main became loose in a severe frost. The plug led to a pipe
which in turn went up to the street. However, this pipe was blocked with ice, and the
water instead flooded the claimant’s house. The claimant sued in negligence. Held. No. Verdict was entered for Defendants. No evidence was entered showing any acts or failures to act on the part of Defendants such as could comprise negligence. The evidence showed that Defendants routinely took precautions against cold weather, and that only due to a particularly and unforeseeably cold winter did any damage occur. This was properly characterized as an accident, not as negligence.
Nettleship v Weston [1971]
The defendant was a learner driver. She was taking lessons from a friend. The friend checked that the defendant’s insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee. The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk. Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation. His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.
Holt v Edge (2006).
The defendant was a doctor, and the
claimant a patient whose illness he misdiagnosed. The claimant had a bleed in her brain, but the
defendant did not realise this because the symptoms she described were not typical of the condition. The condition then caused her to have a stroke. Her claim failed because the symptoms she talked about were unusual for that condition, and so the doctor did not fall below the expected
standard in failing to diagnose it.
The reasonable person
The conduct of the defendant will be measured against that of the reasonable person.
The reasonable person, therefore, is ‘average’, not perfect. In deciding whether a defendant
has breached the duty of care, the court applies an objective test. In other words, the general
question is ‘what would a reasonable person have foreseen in this particular situation?’
rather than ‘what did this particular defendant foresee in this particular situation?’.
In deciding what behavior would be expected of the reasonable person in the circumstances of
a case,
● special characteristics of the defendant;
● special characteristics of the claimant;
● the size of the risk;
● how far it was practical to protect against the risk;
● common practice in the relevant field;
● any benefits to society that might be gained from taking the risk.
Standard of care
he standard of care in negligence never amounts to an absolute duty to prevent harm to others. Instead, it sets a standard of reasonableness: the duty is to do whatever a reasonable person would do to prevent harm occurring, not to do absolutely anything and everything possible to prevent harm
Children
Child defendants are expected to reach the standard of care reasonably expected of ordinary
children of the same age.
Mullin v Richards [1998] (Children)
Two 15-year-old schoolgirls were fencing with plastic rulers during a class when one of the
rulers snapped and a fragment of plastic caused one of them to lose all useful sight in one eye.Therefore, since such games were common and rarely led to injury, the injury in question
was unforeseeable to 15-year-old schoolgirls, and there was no liability in negligence.
Illness
A difficult issue is what standard should be applied when a defendant’s conduct is affected by some
kind of medical problem beyond their control.
Roberts v Ramsbottom (1980),
Roberts v Ramsbottom (1980), the defendant
had suffered a stroke while driving and, as a result, lost control of the car and hit the claimant. The
court held that he should nevertheless be judged according to the standards of a reasonably competent driver. This may seem extremely unjust, but remember that motorists are required by law to be covered by insurance; the question in the case was not whether the driver himself would have to compensate the claimant, but whether his insurance company could avoid doing so by establishing that he had not been negligent.
Mansfield v Weetabix Ltd (1997),
Here the driver of a lorry was suffering from a disease which on the day in
question caused a hypoglycaemic state (a condition in which the blood sugar falls so low that the
brain’s efficiency becomes temporarily impaired). This affected his driving, with the result that he
crashed into the defendant’s shop. The driver did not know that his ability to drive was impaired,
and there was evidence that he would not have continued to drive if he had known. The Court of
Appeal said that the standard by which he should be measured was that of a reasonably competent
driver who was unaware that he suffered from a condition which impaired his ability to drive; on
this basis he was found not to be negligent.
Sporting events
Spectators and competitors in sporting events may be owed a lower standard of care than
the general standard.
Wooldridge v Sumner [1963]
The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti non fit injuria Held: There was no breach of duty so the Claimant’s action failed. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk.
Differences of opinion
In assessing the standard of care to be expected in areas where the defendant is exercising special
skill or knowledge, the courts have accepted that within a profession or trade there may be differences of opinion as to the best techniques and procedures in any situation.
Bolam v Friern Hospital Management Committee [1957]
The claimant underwent a course of electro-convulsive therapy in hospital as treatment
for severe depression. This involves the application of electrical current to the patient’s
head with the aim of causing seizures. The doctor failed to provide the claimant with any
muscle relaxants or any physical restraint. The claimant suffered dislocation of both hip
joints with fractures of the pelvis on each side. The court had to decide whether it was
negligent not to provide relaxants or restraints. The standard of care for doctors is ‘the standard of the ordinary skilled man exercising and professing to have that special skill’. There were conflicting views from practitioners
on the use of relaxants and restraints. As there were therefore doctors who would have
acted in the same way, the doctor treating the claimant had acted in accordance with a
competent body of medical opinion and was therefore not negligent.
Bolitho v City & Hackney Health Authority (1997)
A 2 year old child was admitted to hospital suffering from breathing difficulties. A doctor was summoned but did not attend as her bleep was not working due to low battery. The child died. The child’s mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the child’s life. The doctor gave evidence that had she attended she would not have intubated. Another doctor gave evidence that they would not have intubated. The trial judge applied the Bolam test and held that there was no breach of duty. The claimant appealed. Although there was a recognised body of medical opinion in accordance with the doctor’s
practice, the House of Lords held that a doctor could be liable in negligence despite the presence of a body of medical opinion in favour of their actions. The court can decide that a body of opinion is not reasonable or responsible if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis.
Adams v Rhymney Valley DC [2000] ( DEFENDANTS WHO DO NOT HAVE PROFESSIONAL SKILLS0
The claimant’s children died when fire broke out in the house they rented from the defendant council. The house had double-glazed windows which could only be opened with a key, and the claimants had been unable to smash the glass quickly enough to save the children. If a reasonable body of experts in the field would consider that the council’s window design struck the balance of the risk of fire against the risk of children falling out in an acceptable away, and the court accepted this view as reasonable, there was no negligence, even though other experts might disagree and even though the council had not consulted experts.
