Breach of duty

Question 1

How to determine breach of duty

Answer 1

There are two stages in determining whether there has been a breach of duty.
First, the standard of care to be expected of the defendant must be established. This is a question of law.
Once this has been ascertained, all the facts and circumstances must be examined to see if the defendant has fallen below that standard, ie breached the duty. This is a question of fact.

Question 2

Standard of care: general rule

Answer 2

A person does not have to do everything possible to prevent harm. Rather, they have to reach the standard of what a reasonable person would do.

Question 3

Reasonable person - objective test

Answer 3

In essence the standard is objective. However, despite the standard being objective, the court will look at the particular circumstances which the defendant faced and ask what the reasonable man would have had in contemplation in those circumstances.

Question 4

Act, not the actor

Answer 4

In some situations, it may not be clear what standard to apply. One principle that might help in understanding this area of law is to consider that the test should be based ‘on the act and not the actor’

E.g: Wilsher v Essex AHA [1986] 3 All ER 801:
A junior doctor was judged according to the act he was undertaking, not his level of inexperience. It was held that a lower standard of care did not apply to those training within a profession. A uniform standard of care had to be adopted otherwise: ‘inexperience would frequently be urged as a defence to an action for professional negligence’.

Question 5

Professional standard

Answer 5

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.

Question 6

Children

Answer 6

Held to a lower standard e.g. the standard of your age

Question 7

illness and disability

Answer 7

example case

Roberts v Ramsbottom [1980] 1 All ER 7
Facts: The defendant unknowingly suffered a stroke before he drove into town. However, he was aware that his consciousness had been impaired. Whilst driving into town he collided with a stationary van before hitting and injuring the claimant as she emerged from a stationary vehicle.
Held: The defendant was negligent; he was judged against the standard of the reasonable competent driver. He should have stopped the car as soon as he realised that his driving was being affected. The defendant could only escape liability if the incapacity amounted to a total loss of consciousness or control.

Question 8

standard of care considerations summary

Answer 8

the standard of care involves considering whether the standard to be applied is the ‘reasonable person’ test’ (or reasonable person of the defendant’s age if they are a child or a reasonable person without knowledge that their actions are impaired by disability/illness) or the professional standard. Whichever of these applies, remember the ‘objective nature of the test’ and ‘act, not the actor’ principle.

Question 9

Establishing breach of the duty

Answer 9

There are two stages in determining whether there has been a breach of duty.
First, the standard of care to be expected of the defendant must be established. This is a question of law.
Once this has been ascertained, all the facts and circumstances must be examined to see if the defendant has fallen below that standard, ie breached the duty. This is a question of fact.

Question 10

Factors relevant to breach

Answer 10

Likelihood of harm - The more likely someone is to get injured, the more likely it is that there will be a breach.

Magnitude of harm (seriousness of injury) - If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.

Practicality of precautions - It is also necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to require them to take the necessary precautions, even against a clearly foreseeable risk, the court will accordingly not impose liability.

Benefit of the defendant’s conduct - The value to society of the defendant’s activity is a factor the courts consider. If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may be justified. In effect, the potential benefits to safety are weighed against any possible damage that may result if the risk is taken.

Question 11

Compensation Act 2006 s 1

Answer 11

Reflecting the position established in common law, s 1 of the Compensation Act 2006 allows courts to consider the deterrent effect of potential liability on socially desirable activities:
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.

Question 12

Social Action, Responsibility and Heroism Act 2015

Answer 12

This act requires that when a court is considering whether a person has been negligent, it must take into account whether the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others and whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

Question 13

Common practice

Answer 13

If adefendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant’s favour, and the defendant may escape liability.
However, note that the court can always rule that the common practice is itself negligent, as it did in the case of Re Herald of Free Enterprise, The Independent, 18 December 1987, where the common practice of sailing a “roll-on roll-off ferry” with the bow doors open was illogical and therefore declared negligent.
It seems likely that the less expertise / specialist knowledge involved in a particular area, the less weight the court will give to ‘common practice’ as a consideration compared to the likelihood of harm, magnitude of harm, practicality of precautions and benefits from the defendant’s conduct.

Question 14

‘State of the art’ defence

Answer 14

This principle is relevant to establishing whether there has been a breach (and is not relevant to defences). The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be regarded as negligence. For example, in Roe v Minister of Health [1954] 2 QB 66, the claimants suffered paralysis from the waist down having been injected with an anaesthetic. The anaesthetic was stored in glass ampoules which were kept in a phenol solution to keep them disinfected. Unknown to anyone, invisible cracks in the ampoules, allowed the phenol to contaminate the anaesthetic. The court held that at the time of the operation (1947) the staff could not be expected to know of this danger. The test to be applied was what a responsible body of medical opinion would know at the time of the operation and not at the time of the court hearing (1954).

Question 15

sport

Answer 15

When the defendant is participating in sport, the demands of the game will be foremost in their mind and they are likely to take risks in the heat of the moment (Wooldridge v Sumner [1963] 2 QB 43). In this case it was decided that nothing short of reckless disregard for the claimant’s safety would constitute a breach. Although in this case it was a spectator, rather than another participant, that was injured.
In Watson v Gray, The Times, 26 November 1998, it was held that there would be a breach of duty if the reasonable participant (of the defendant’s level) would have known that there was a significant risk that what they did could result in serious injury.

Question 16

a balancing exercise

Answer 16

All relevant factors need to be balanced to determine if there has been a breach. In The Wagon Mound (No 2) [1967] 1 AC 617 the defendant was transferring oil onto a ship when it carelessly spilled some of that oil into the harbour water. Engineers working on nearby ships caused a spark which very unluckily fell onto the oil, igniting it. This led to a large fire and significant harm to the claimant’s ships. The court noted that it was very improbable that the oil would be ignited in this way (likelihood of harm), but the harm resulting if it was ignited could be very large (magnitude of harm), and it would have been easy to avoid the spillage (practicality of precautions). There was no clear benefit to the defendant’s conduct.
Accordingly, the defendant had fallen below the required standard of care.

Question 17

Proof of breach

Answer 17

The burden is on the claimant to prove that the defendant breached the duty of care. In order to discharge this burden, the claimant must show this, on the balance of probabilities.
Therefore, the obligation is on the claimant to collect evidence that will show that it is more likely than not that the defendant breached their duty. This can often be a very difficult task. However, the claimant may be assisted by s 11 of the Civil Evidence Act 1968.

Question 18

Section 11 of the Civil Evidence Act 1968

Answer 18

If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results if the conviction is evidence of careless conduct eg dangerous driving.

Question 19

Res ipsa loquitur

Answer 19

In a very small number of cases, the claimant may also be assisted by the maxim res ipsa loquitur (‘the facts speak for themselves’). The maxim is used where the only plausible explanation for the claimant’s injuries is negligence by the defendant. If the maxim applies it will then be for the defendant to adduce evidence that shows that they were not negligent. The maxim, therefore, helps claimants who have difficulty proving exactly how an accident occurred.
In Scott v London and St Katherine Docks & Co (1865) 3 H&C 596, the claimant was injured when large sacks of sugar fell onto her. She could not explain how this happened. However, as the sacks were in the defendant’s control, the court inferred that the accident had been due to the defendant’s lack of care, ie the sacks could not have fallen by themselves. The following three conditions must be satisfied for the maxim to apply:
(1) The thing causing the damage was under the control of the defendant or someone they are responsible for;
(2) The accident would not normally happen without negligence; and
(3) The cause of the accident is unknown to the claimant ie the claimant has no direct evidence of the defendant’s failure to take care.

Question 20

the Bolam test

Answer 20

Whenever the professional standard of care has been set, for example, that of a reasonably competent doctor, or that of a reasonably competent personal injury solicitor etc, the starting point for determining whether the defendant has fallen below this standard, is the Bolam Test (which comes from the key case, Bolam v Friern Hospital Management Committee [1957] 2 All ER 118). Justice McNair stated that: ‘[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. This is the Bolam Test, and it applies to other (non-medical) professions too. If a professional can show that they acted in accordance with a responsible body of professional opinion, they will not be in breach of duty.
Note also that Justice McNair said ‘[a doctor] is not negligent, if he is acting in accordance with such a practice, merely because there is a body of medical opinion which takes the contrary view.’ This is acknowledging that it is common and perfectly valid to have conflicting professional opinions. A court’s preference for one body of opinion over another is not a basis for the conclusion of breach. As long as the practice used by the defendant is accepted as proper by a responsible body, there is no breach.

Question 21

what constitutes a responsible body

Answer 21

What is clear from the key case of De Freitas v O’Brien and Connolly [1995] 6 Med LR 108, is that such a body does not have to represent the majority of opinion, merely an acceptable one. In this case, the plaintiff suffered from back problems for many years. She claimed that the defendant had been negligent in operating on her back without any or sufficient radiological or clinical evidence to justify the operation.
A body of just 11 spinal surgeons (out of over 1,000 orthopaedic and neuro-surgeons) supported the defendant’s decision to perform surgery on the plaintiff. The vast majority thought the decision was dangerous and unmerited. The court held that there was no breach as the 11 spinal surgeons supporting the defendant were a responsible body – they were all very experienced, with strong qualifications and leaders in the field of spinal surgery.

Question 22

when can a common professional practice be negligent

Answer 22

the court can find a common professional practice to be negligent (otherwise the profession would be the judges of negligence rather than the court). In the key case of Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 it was made clear that it will not always be enough for a defendant to show that their practice was common place; the practice must also be reasonable or responsible.
In Bolitho, Lord Browne-Wilkinson said: ‘The court has to be satisfied that…the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.’
Therefore, if the opinion does not withstand logical analysis, the defendant is in breach of duty. It will only be in rare/exceptional cases where the courts find the opinion to be unreasonable, but the fact that the court have the option to do so, is significant.
In summary, where the standard of care is the professional standard, the Bolam Test is used to determine breach, but the opinion must withstand logical analysis. The courts might also consider the factors mentioned in the element ‘Establishing breach of duty’ such as likelihood of harm. These factors might help them to establish whether the opinion being relied upon is logical.

Question 23

state of the art defence in a professional context

Answer 23

the courts must assess the defendant’s actions against the knowledge in the profession at the time of the alleged breach. Knowledge may change particularly quickly in professional areas.
In Crawford v Charing Cross Hospital, The Times, 8 December 1953, the claimant suffered Brachial Palsy whilst having a blood transfusion during surgery. His argument was that the anaesthetist should have been aware of such a risk from an article in the Lancet published six months earlier (the Lancet is a leading medical journal). The court rejected the claim for negligence saying it would be both impractical and unrealistic to expect a professional to know every new development in their field at any given moment in time.
However, the General Medical Council (GMC) now states that doctors must do what is reasonable to keep up to date with new developments by going on professional development courses and case law suggests that doctors must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals (see Gascoine v Sheridan (1994) 5 Med LR 437). The availability of information online raises expectations. It might therefore be that Crawford (which was decided in the 1950s) would be decided differently today.

Question 24

Failure to advise in relation to risks

Answer 24

the Bolam Test does not apply when considering whether a medical professional is in breach of duty for a failure to warn of risks of procedures.

Decision in Montgomery - Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. A material risk is one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent.
However, a medical professional can withhold information as to a risk if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health. Medical professionals are also excused from conferring with the patient in circumstances of necessity, for example where the patient requires treatment urgently but is unconscious.

The obstetrician was in breach of duty for failing to warn the claimant of the material risk of shoulder dystocia.

The court stated that the Bolam test is concerned with the exercise of professional expertise. However, some decisions that a doctor (for example) makes are not connected with medical expertise. The decision about whether or not to advise as to risks was such a decision: it had more to do with the way in which the doctor-patient relationship should be viewed than it did medical expertise. Accordingly, the Bolam test is not relevant when considering a failure to advise as to risks – a medical professional is required to consider matters primarily from the patient’s point of view.

Question 25

what did the Supreme Court confirm in the case of McCulloch

Answer 25

(a)The Bolam Test does not apply to this part of the duty: the obligation to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment. This is not a matter which the courts are happy to leave to the varied judgments of the medical profession; the court will decide whether a risk is material and whether the claimant should have been informed of the risk. The court will not ask whether a responsible body of doctors would have informed of the risk. The test the courts use to decide whether a risk is material is one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent. (b)However, the Bolam Test does now apply to this part of the duty: the obligation to take reasonable care to advise the patient of any reasonable alternative or variant treatments. A doctor who has taken the view that a treatment is not a reasonable alternative treatment for a patient will not be negligent in failing to inform the patient of that alternative treatment if the doctor’s view is supported by a responsible body of medical opinion.