Breach of Duty Flashcards
When seeking to establish a claim in negligence, you must first establish…..
The kind of loss or damage sustained.
That DoC is owed by the defendant in relation to that loss.
Two stages in determining whether there has been a breach of duty
1) Standard of care to be expected must be established
2) Facts to establish that the defendant has fallen below the standard - breached the duty
Standard of care questions
- How careful does a defendant need to be?
- Do we expect the same from different sets of people
Standard of care: The general rule
Defendant must behave as a reasonable person would in all circumstances.
See definition in Blyth v Birmingham Waterworks 1856
Blyth v Birmingham Waterworks 1856
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily relate to the conduct of human affairs, would do…
Or doing something which a prudent and reasonable man would not do.
Reasonable person an objective test
- Look at the facts and circumstances
- What would a reasonable person assume
= impersonal test
Act, not the actor
The test for setting the stdard of care
Nettleship v Weston 1971
A learner driver was judged by the standard of the ordinarily competent driver.
No allowance was made for her lack of experience.
The act (driving) set the standard; it was not adjusted to the actor (a learner driver)
Wilsher v Essex AHA 1986
- Junior doctor placed a catheter into a vein rather than an artery leading to an excess of oxygen in the young patient, and it was argued, subsequent blindness.
- Lower standard of care did not apply to those training within medicine profession.
- Did argue that wouldnt have been breach if sought advice from a more senior/experienced colleague
Condon v Basi 1985
Higher degree of care would be required for a first division footballer than a local league player.
Standard of care in competitive sports is objective in differing sets of circumstances.
The professional standard
A different standard is expected of professionals and can be seen as an example of the “act, not actor” principle.
The standard is based on what the reasonable professional in that field would have done, rather than what the reasonable person would have done
Bolam v Friern Hospital Management Committee 1957
FACTS
- Claimant was treated for depression
- Two bodies of competent medical opinion as to the procedure to be used in electro convulsive therapy (relaxant drugs or not)
- No drugs were used, claimant suffered a fractured pelvis.
- was admitted that a relaxant would have excluded the risk of fracture
Bolam v Friern Hospital Management Committee 1957
HELD
A man need not possess the highest expert skill
Established law that is sufficient if he exercises the ordinary skill of an ordinary competent man
Professional negligence
Not a separate tort but a particular area of ordinary common law negligence
Children
Standard required will be that of the reasonable child of the defendant’s age carrying out that act
See Mullin v Richards 1998
Mullin v Richards 1998
- 15 year old schoolgirls
- Injured eye from ruler during a play fight
- CoA held whether a reasonable and careful 15 year old would have forseen the risk of injury
- Held that the schoolgirls could not have forseen - common and not prohibited practice.
Illness and disability
Courts modify the standard to take into account certain characteristics of defendants.
* eg where the defendant is suffering from an illnes that he was reasonably unaware of
Eg Roberts v Ramsbottom vs Mansfield v Weetabix Ltd
Roberts v Ramsbottom 1980 - FACTS
Defendant unknowingly suffered a stroke before driving into town.
Was aware that his consciousness had been impaired.
Collided with a stationary van before hitting and injuring claimant
Roberts v Ramsbottom 1980 - HELD
Defendant was negligent
Judged against the standard of a reasonable competent driver
Defendant could only escape liability if the incapability amounted to a total loss of consciousness or control
Mansfield v Weetabix Ltd 1998 - FACTS
Lorry driver crashed his vehicle into claimants shop after suffering hypoglycaemic attack.
No evidence to suggest that the driver knew his ability to drive was impaired
Mansfield v Weetabix Ltd 1998 - HELD
Standard of care was adjusted
Judged against the standard of a reasonably competent driver who was unaware that he is suffering a condition that impairs his ability to drive
Not liable
General rule
Defendant must behave as a reasonable person would in all circumstances.
Objective standard
The standard is set by…
The standard is set by the act, not the actor
When act is carried out by a professional…
The standard is based on what the reasonable professional in that field would have done
Establishing breach of duty
- Establish standard of care
- Establish if duty is breached
Establishing breach of duty is a question of …
- Fact and degree
- Consider all of the particular circumstances of the case
Factors relevant to breach
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefit of defendant’s conduct
- Common practice
- “State-of-the-art” defence
- Sport
Factors relevant to breach: Likelihood of harm
The more likely someone is to get injured, the more likely it is that there will be a breach.
eg Bolton v Stone 1951; Haley v London Electricity Board 1964
Bolton v Stone 1951
Injured by a cricket ball, hit out of the ground.
Happened 6 times in the previous 30 years, 7ft fence around it.
Risk was so slight that there was no breach
The reasonable person would not have guarded against such a small risk.
Haley v London Electricity Board 1964
- Blind claimant fell down a hole in the pavement dig by the defendant
- Precautions not taken to precautions
- Risk of causing injury to blind people was not so small that it should be ignored
Factors relevant to breach: Magnitude of harm (seriousness of injury)
Greater care needed for more serious injury than a minor injury
eg Paris v Stepney Borough Council 1951; Watson v British Boxing Board of Control Ltd 2001
Paris v Stepney Borough Council 1951
Claimant had one good eye, a fact known to employers
No protective goggles provided
Became completely blind after metal entered his good eye.
Risk of injury was small but consequences significant
Held liable
Watson v British Boxing Board of Control Ltd 2001
Boxing body breached by failure to provide suitable ringside resuscitation equipment and doctors - because the potential harm was serious brain damage
Factors relevant to breach: Practicality of Precautions
Ascertain how easily the risk could have been avoided.
* Balance the cost
* Balance the practicality
* Against the severity of the risk
Need only act reasonably
See case Latimer v AEC Ltd 1953
Latimer v AEC 1953
Defendant’s factory floor became slippery following a flood.
Claimant slipped
Defendant had laid down 3 tonnes of sawdust.
Only way to guarantee safety was
* Close the factor
* Employ many people to mop up spills
Not liable
Factors relevant to breach: Benefit of defendant’s conduct
The value of the defendant’s activity is a factor courts consider.
Eg Watt v Hertfordshire CC 1954
Watt v Hertfordshire CC 1954
- Fireman was injured in a fire engine on a way to deal with emergency call.
- No breach as risk of injury small
- Where life is at stake abnormal risks may be justified
Not a blanket exemption for emergency services
Ward v LCC 1938
No blanket exemption to the emergency services.
* A fire authority was held liable for a damage caused by going through a red light on the way to a fire.
Compensation Act 2006 s1
Reflects the est common law position.
* In determining whether particular steps should be taken to meet a standard of care
* Allows courts to consider the deterrent effect of potentially desirable activities.
Social Action, Responsibility and Heroism Act
- Courts take into account whether the person acting for the benefit of society or any of its members.
- eg heroism
Factors relevant to breach: Common Practice
- If defendant can show they acted in accordance with usual practice.
- May escape liability.
Factors relevant to breach: State of the art
unforseeable risks cannot be anticipated, therefore failing to to guard against them will not be regarded as negligence
Eg Roe v Minister of Health 1954
Roe v Minister of Health 1954
Claimants suffered from paralysis from the waist down after injection with an anaesthetic.
* Phenol contaminated the anaesthetic.
* Staff weren’t to know
Test was What a responsible body of medical opinion would know at the time of the operation
Factors relevant to breach: Sport
When defendant is participating in sport, the demands of the game will be foremost and they are likely to take risks
Eg Wooldridge v Summer 1963
Woolridge v Summer 1963
Nothing short of reckless disregard for claimant safety = breach.
Although was spectator in this case.
Watson v Gray 1998
No breach if a reasonable participant would have known there was a sig risk
Factors relevant to breach: Balancing exercise
All relevant factors need to be balanced to determine if there’s been a breach
eg The Wagon Mound (no2)
The Wagon Mound (no2) 1967
- Def transferring oil, spilled some into harbour
- Nearby engineer spark = fire
- Although improbable, large magnitude, easy to avoid spillage
= below standard of care
Proof of breach
Burden is on the claimant to prove the breach the DoC
On the balance of probabilities
Burden of evidence
On claimant to gather
see s11 of Civil Evidence Act
s11 of Civil Evidence Act
If injury led to a criminal investigation claimant may be helped by relying on conviction if evidence of careless conduct
Res ipsa loquitur
The facts speak for themselves
Only plausible explanation is negligence
Maxim helps claimants who have difficulty proving exactly how an accident occurred.
Scott v London and St Katherine Docks & Co
Claimant was injured when sacks of sugar fell.
Could not explain how it happened.
Court inferred it was due to lack of care
Three conditions for Res ipsa loquitur
1) Thing causing damage was under control of the defendant or someone they’re responsible for
2) Accident would not normally happen without negligence
3) Cause is unknown to the claimant.
The Bolam Test
The starting point for determining whether a reasonably competent professional person has fallen below the Professional Standard
Bolam v Friern Hospital Management Comittee 1957
QUOTE
Justice McNair
“[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art..”
Under the Bolam test a medical professional is not negligent if
“he is acting in accordance with such a practice, merely because there is a body of opinion which takes the contrary medical view”
Maynard v West Midlands RHA 1985
As long as the practice used by the defendant is accepted as proper by a responsible body, there is no breach
Authority for what constitutes a responsible body of opinion
De Freitas v O’brien and Connolly 1995
De Freitas v O’brien and Connolly 1995
Spinal problems without radiological/clinical evidence.
Body of 11/1000 spinal surgeons supported the defendant’s decision.
No breach as the 11 held to be a responsible body
Can common professional practice be negligent
YES
Even in a professional context, the court can find a common professional practice to be negligent
(otherwise the profession would be the judges of negligence rather than the court)
Bolitho v City and Hackney Health Authority 1997
Not always enough for a defendant to show their practice was common place.
Must also be reasonable or responsible
If the opinion does not withstand logical analysis = breach of duty
RARE and EXCEPTIONAL
“State of the Art” in a professional context
Courts must assess defendant’s actions against the knowledge in the profession at the time of the alleged breach.
Knowlege changes particularly quickly in professional areas
Crawford v Charing Cross Hospital 1953
- Brachial palsy whilst blood transfusion.
- Anaes should have been aware from an article in the Lancet 6 months earlier.
- Rejected negligence as unrealistic to expect professionals to know every development.
- GMC now statesd they must do what they can to keep up to date
Gascoine v Sheridan 1994
Doctors need not necessarily be aware of content in more obscure journals
Online information
Raises expectations
May be that Crawford in the 1950s would be decided differently
Where the standard of care is a professional standard
- The Bolam Test
- Opinion must withstand logical analysis **Bolitho v City & Hackney AHA)
When establishing breach in clinical negligence
Focus should be on the application of relevant clinical negligence case law.
Courts likely to focus solely on the application of the relvent case law.
Failure to advise in relation to risks
Bolam test does not apply when considering whether a medical professional is in breach of duty for failure to warn of the risks of procedures
Montgomery v Lanarkshire Health Bard 2015
FACTS
Diabetes can lead to larger babies.
Dystocia = shoulders stuck
Starved of oxygen = brain damage.
Argued that she should have been warned so she could have asked for Caesarean section
The obst doc had not warned about this because the risk was so small Some experts supported the viewfa
Montgomery v Lanarkshire Health Bard 2015
HELD
Under a duty to take reasonable care to inform patient of any material risks and any alternative/variant treatments
Material Risks
One which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is/should reasonably be aware that the particular patient would be likely to attach significance to
* Then the patient can give informed consent
Excuses to withhold information
- Reasonably consider disclosure would be detrimental to patients health.
- Excused from conferring in unconscious for instance
McCulloch and others v Forth Valley Health Board 2023
- Bolam Test does not apply to the part of the duty to ensure reasonably informed.
Bolam Test does now apply to the obligation to advise re alternative/variant treatments
Re Herald of Fee Enterprise
Roll on roll off ferry
Illogical
Even though common practice.
Common practice - Case
Re Herald of Free Enterprise
