Breach of Duty

Question 1

Bolton v Stone [1951]

Answer 1

Authority: MAGNITUDE OF THE RISK is a consideration when assessing breach of duty.
Cricket ball - injured someone 100 yards away from where hit - over fence - ball had been hit outside ground before only 6 times ever.

H of L held: NO BREACH OF DUTY.
Magnitude of the risk was clearly very low.
“An ordinary careful man does not take precautions against EVERY foreseeable risk” Per Lord Oaksey

Court took approach that it’s just a factor amongst a few other factors in make the breach assessment.

Question 2

Miller v Jackson [1977]

Answer 2

Distinguished from Bolton v Stone - but v. similar facts.
Cricket club - but balls frequently hit outside of ground.
Demonstrates ‘magnitude of the risk’ component of REASONABLE PERSON test.

Question 3

Swain Mason v Mills & Reeve [2012]

Answer 3

Daughters sued law firm who had been advising father on MBO - father died in routine heart operation (1 in 1000 chance of death)
Coz of death - daughters incurred high tax liability.
Sued firm on basis that they should’ve delayed MBO till after the heart operated.
REJECTED - NOT BREACH OF DUTY AS MAGNITUDE OF RISK WAS LOW.

Follows on from Bolton v Stone; Miller v Jackson.

Question 4

PARIS V STEPNEY BC [1951]

Answer 4

AUTHORITY - Another factor of the RP test is the GRAVITY OF THE POTENTIAL HARM.

Garage employee - only one working eye - no goggles provided.

Total blindness = very high gravity of harm - graver than just losing sight in 1 eye - RP would’ve considered this and provided glasses.

Question 5

Latimer v AEC Ltd [1953]

Answer 5

Authority: Another component of the RP test is THE COST OF TAKING PRECAUTIONS.

Wet factory floor - D factory had already taken all the precautions it could without shutting down the entire factory - RP would not be expected to be so precautionary as to shut down the premises.

Question 6

Watt v Hertfordshire CC [1954]

Answer 6

(Non-preferred) authority, that another component of RP test is the SOCIAL BENEFIT OF THE DEFENDANT’S CONDUCT.

Emergency - fire brigade only had 1 suitable fire engine to carry needed equipment but not there - loaded on to lorry - injured firemen.

NO BREACH - as saving lives justifies taking the risk - SOCIAL BENEFIT OF D’S CONDUCT TAKING INTO ACCOUNT IN RP TEST.

Question 7

Tomlinson v Congleton BC [2004]

Answer 7

PREFERRED AUTHORITY that SOCIAL BENEFIT OF D’S CONDUCT = component of RP test.

P - injured diving into lake owed by D council.
Lake = popular beauty spot, sports etc.
Swimming already prohibited.
Only other option to stop swimmers, despite all the signs, was to make lake unaccessible almost.
COUNCIL SHOULD NOT HAVE TO DEPRIVE LOCAL COMMUNITY OF VALUABLE PUBLIC AMENITY TO PROTECT PEOPLE FROM AN OBVIOUS RISK.

Better authority to use than Watt v Hertfordshire CC

Question 8

Scout Association v Barnes [2010]

Answer 8

Boy injured at scouts playing game in the dark.
Held, no greater social benefit of conducting game in dark rather than light.

Thus distinguished from Watt v Hertfordshire CC and Tomlinson v Congleton BC

Question 9

COMPENSATION ACT 2006 S.1

s.b. page 270

Answer 9

S.1. - When court considers negligence claim and assessing standard of care (breach) - must consider whether a requirement to take precautionary steps would prevent a desirable activity from being undertaken - in part of in full.

Eval. - Doesn’t make any changes to the common law (Tomlinson v Congleton BC etc.)
WAS MADE TO CHANGE PUBLIC PERCEPTIONS - TO ADDRESS COMPENSATION CULTURE MYTH.
Sort of reassurance to public that defensive practices should be discouraged.

Question 10

Social Action, Responsibility and Heroism Act 2015

s.b. 341

Answer 10

Building on from Compensation Act 2006 - seeks to protect defendants from negligence claims when the alleged negligence occurred in the course of social activity, responsibility, or in the course of a socially heroic act.

Question 11

Roe v Minister of Health [1954]

Answer 11

Authority, that when assessing breach of duty (RP) test - court should NOT BE AFFECTED BY HINDSIGHT OR ADVANCES IN SCIENTIFIC KNOWLEDGE/TECHNOLOGICAL SKILL since the alleged breach happened.

Question 12

United States v Carrol Towing Co

Answer 12

Learned Hand test.

When the cost of preventing injury (B) is less than the gravity of the harm that will result (L) discounted by the probability of it happening (P), then there is breach.

B

Question 13

Grimshaw v Ford Motors (USA)

Answer 13

Showed weakness of Learned Hand Test.

Cheaper for Ford to pay off victims of defective vehicles as and when rather than precautionary action to recall all vehicles.
Despite B being > P X L - still made to pay damages, albeit punitive for an understandable reason.

Question 14

NETTLESHIP V WESTON [1971]

Answer 14

AUTHORITY:
Standard of care assessed by THE LEVEL OF CARE AND SKILL REQUIRED BY THE ACTIVITY WHICH THE D WAS PURSUING.
NOT assessed by what each particular D - given their respective level of experience and skill - could have/been expected to have done.
Thus - lack of experience/skill no defence in tort.

STANDARD OF CARE = OBJECTIVE.

FAULT WITHOUT MORAL CULPABILITY - like Roberts v Ramsbottom

Question 15

ROBERTS V RAMSBOTTOM

Answer 15

Driver - having stroke - crashed - BUT many things had happened to make him aware that his behaviour was unusual e.g. crashed into parked van, almost hit pedestrian - admitted feeling “increasingly queer”
Liability imposed
D was at fault for continuing to drive whilst knowing that he was unfit, even if he didn’t know full extent of what he was suffering.

FAULT WITHOUT MORAL CULPABILITY (like in Nettleship v Weston)

Question 16

Mansfield v Weetabix

Answer 16

Distinguished from Roberts v Ramsbottom

Driver - hypoglycaemic shock
Happened gradually, NOT suddenly.
Held that driver could still escape liability even though disabling event was not sudden, because (providing that) HE WAS UNAWARE OF ITS HAPPENING.

Question 17

Vaughan v Menlove [1837]

Answer 17

Courts will NOT necessarily modify the standard of care for those with mental illness.

D - learning difficulties - set fire to property in v. stupid way
Old example of idea in Dunnage v Randall

Question 18

DUNNAGE V RANDALL [2015]

Answer 18

Modern example of Vaughan v Menlove - that suffering from mental illness does not preclude liability.
In this case - fire - jumping out window case
SCHIZOPHRENIA

Rejected that exclusion of liability enjoyed by children should be extended to those with mental illness.

Question 19

Mullin v Richards [1998]

Answer 19

Authority that children expected to demonstrate lower standard of care, as courts treat them as having lower degree of foresight.

15 year old schoolgirls fighting with rulers - fragment into other’s eye.

Judged not by RP test but by what the ordinary, prudent 15 y.o. girl would/wouldn’t do.

Question 20

Orchard v Lee [2009]

Answer 20

Reinforces Mullin v Richards

Children assessed by the reasonable person of their age test.

Question 21

Perry v Harris [2008]

Answer 21

Children’s party - brain damaged on bouncy castle in collision with another child.
Supervising parents sued for not watching children attentively enough to prevent accident.
Rejected - AUTHORITY THAT LAW DOES NOT REQUIRE PARENTS TO KEEP THEIR CHILDREN UNDER CONSTANT SUPERVISION.
Standard of care = reasonable parent/supervisor.
Impossible to prevent all risk of children injuring one another when playing together.

Question 22

PHILIPS V WHITELY (WILLIAM) LTD [1938]

Answer 22

D’s standard of care will be judged against the standard of a reasonably skilled professional possessing the skills that D purports/holds themselves out as having.

Jeweller - perfectly competent piecing - washed hands properly - but P - infection nonetheless.
Judgement for D - judged by skill of RP purporting to having skills of a competent jeweller, NOT by the reasonable surgeon.

TREAT WITH CAUTION - JUDGEMENT REFLECTIVE OF ERA IN WHICH IT WAS DECIDED.

Question 23

Wilsher v Essex AHA [1987]

Answer 23

Slightly different from Philips v Whitely

Junior doctor, then registrar, both made same mistakes - baby almost blind.
Liable.
STANDARD OF CARE OF A SPECIALIST HOSPITAL UNIT IS TO BE DETERMINED BY THE PARTICULAR POSTS WITHIN THE UNIT, NOT BY THEIR RANK OR STATUS.

Thus; standard of care = ordinary person PROFESSING TO HAVE SKILL TO CARRY OUT THE DOCTOR HAS ELECTED TO PERFORM, rather than specific to the competency of the doctor him/herself.

INEXPERIENCE NOT A DEFENCE TO NEGLIGENCE (Nettleship v Weston)
NB - case later overruled by H of L but causation related.

Question 24

BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE [1957]

Answer 24

‘Bolam’ medical paternalism.

In case, medical experts at trial were split as to whether the D’s actions were medically right or wrong.
Devised 2 stage test for med. negligence.

(1) Doctor NOT negligent if acted in way in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
(2) Doctor not negligent for acting in a certain practice, merely because there is a body of opinion that takes a contrary view.

AFFORDED GREAT DEFERENCE TO THE MEDICAL PROFESSION

Question 25

Maynard v West Midlands Regional HA [1984]

Answer 25

Application of Bolam test.
Trial judge had ruled against D doctor even though medical expert evidence agreed with his actions, because trial judge preferred expert witness of doctors giving contrary view.

C of A overturned - court’s preference of medical opinion is not basis for determining standard of care.
Where there is a body of competent medical opinion supporting D - NO BREACH OF DUTY.

Question 26

Edward Wong Finance Co. v Johnson, Stokes and Master

Answer 26

Hong Kong Solicitor - negligent - but many solicitors supported their actions - common practice in Hong Kong.
Tried to make a Bolam type argument.
Failed - Bolam only applies to medical profession.

Question 27

BLYTH v BIRMINGHAM WATERWORKS CO. [1856]

Answer 27

AUTHORITY FOR THE REASONABLE PERSON TEST - HOW BREACH OD DUTY IS DETERMINED.

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

Question 28

SIDAWAY V ROYAL BETHLEM HOSPITAL [1985]

Answer 28

Expanded on Bolam paternalism to medical profession.
D doctor sued for not warning patient of 1-2% risk of spinal damage in procedure.
Others doctors could justify not informing patient in such a situation.

H of L: could only be a case if the gravity/probability of potential harm from a procedure was so high, that doctors should be obliged to tell patients. -

Question 29

BOLITHO V City & Hackney HA [1998]

Answer 29

Retreat from medical paternalism (Bolam; Maynard; Sidaway)

Court added extra limb to Bolam test, essentially:

BODY OF MEDICAL OPINION RELIED UPON MUST WITHSTAND LOGICAL (I.E. JUDICIAL) SCRUTINY.

Effectively giving the final say back to the courts.

Question 30

CHESTER V AFSHAR [2004]

Answer 30

AUTHORITY THAT A PATIENT DOCTOR OWES PATIENT A DUTY TO ENABLE PATIENT TO MAKE A FULLY INFORMED CONSENT.

Question 31

MONTGOMERY V LANARKSHIRE HEALTH BOARD [2015]

Answer 31

UKSC officially overruled Sidaway RE patient rights.

Following on from Chester v Afshar:
Doctor owes Patient DoC to ensure that PATIENT IS INFORMED OF ALL MATERIAL RISKS THAT THE PATIENT WOULD WANT TO KNOW.
Personal autonomy, doctrine of informed consent.
ADULT OF SOUND MIND MUST!!! CONSENT TO ANY TREATMENT INFERRING WITH BODILY INTEGRITY.

Question 32

Wooldridge v Sumner [1963]

Answer 32

Jockey - round corner too fast - hit and injured cameraman who had been warned not to stand there.

AUTHORITY - LOWER STANDARD OF CARE EXPECTED OF SPORTSPERSONS who compete in a fast-paced environment, ‘agony of the moment’, determined to win.

Spectator TAKES THE RISK OF DAMAGE, unless sportspersons’s conduct showed a RECKLESS DISREGARD for the spectator’s safety.
Low standard of care for sportspersons - borderline recklessness.

Question 33

Vowles v Evans [2003]

Answer 33

Rugby injury in amateur match when scrum collapses.
Sued ref for breach of DoC owed to players.
HELD REFEREE LIABLE - rugby = dangerous - rely on ref to enforce rules to minimise those dangers.
Breach established.

Question 34

Caldwell v Maguire [2001]

Answer 34

Jockey fell and injured as a result of negligent riding of 2 other jockeys.
Official (independent) horse-riding association found 2 jockeys in breach of rules.
BUT - COURT REJECTED LIABILITY - LOW STANDARD OF CARE - APPLIED AND REINFORCED Wooldrige v Sumner - immaterial that offical assoc. thought otherwise.

Question 35

Condon v Basi [1985]

Answer 35

Football match - v. dangerous tackle.
Held to be in breach of standard of care
Shows (1) Participants in sport, in addition to bystanders, can bring claims.
(2) Judges less lenient towards football.
Distinguished from Wooldridge v Summner - as conduct went beyond ‘reckless disregard ‘ threshold.

Question 36

Blake v Galloway [2004]

Answer 36

Teenage horseplay

Court made horseplay analogous to sporting situations, imposing a similarly high threshold of liability RE standard of care.

‘tacitly agreed understandings’.

Thus reflects Wooldridge v Sumner and Condon v Basi.