Breach of Duty Cases Flashcards
Nettleship v Weston [1971] CA
Held: A learner driver, who crashed into a lamp post thus injuring her instructor, was liable for in damages for the harm suffered by her instructor - The learner driver owed her instructor a DOC to drive with proper skill and care (the SOC being that of a reasonably competent qualified driver), and had breached that duty.
(Salmon LJ dissenting on the SOC)
In addition
- There was no defence of volenti non fit injuria since the instructor had checked the insurance postion of the car and had therefore expressly not consented to run the risk of injury.
- A 50% reduction was applied to the award of damages under LR(CN)A 1945 due to the contributory negligence of the instructor: where learner and instructor were jointly controlling the driving they were prima facie jointly responsible for the accident. (Megaw LJ dissenting)
Roe v Minister of Health [1954] CA
Held: A hospital which had administered it’s patients with contaminated anaesthetic had not breached their DOC to the patients - the hospital staff had followed standard medical procedure and the contamination of the aneaesthetic bottles was not foreseeable at the time.
Other points
- The doctrine of res ipsa loquitur only apples when all of thse apply:
- The cause of the event is unknown
- the event does not norammly happen in teh absence of negligence
- the defendant has control over teh things that caused the damage
- Even once RIL is found to apply the defdnant is then able to discharge libality ny producing an explanation that is consistent with the absence of fault.
- Somervell, L.J.: “In medical cases the fact that something has gone wrong is very often not in itself any evidence of negligence.”
Bolton v Stone [1951] HL
Held: Although the occupier of a cricket ground owes a DOC to persons on an adjacent highway or on neighbouring property, since the risk of a cricket ball being hit over and out of the ground (there was a substnail fence enclosing the ground) was so minimal, the cricket ground had not breached that duty.
Reasoning
- D need only take ‘reasonable’ precauations against a foreseeable risk - need only take precautions if a risk was reasonably likely to materialise. No-one had been injured in the last 90 years - risk of injury was exceptionally small.
Paris v Stepney Borough Council [1951] HL
Held: Employer breached his DOC by not providing goggles to his employee, and was liable in damages for harm suffered to the employee’s eye causing him to go blind.
Reasoning
- This particular employee was only sighted in one eye, therefore the damage to this one eye left him completely blind. Employer tried to argue that it hadn’t breached its duty because it didn’t provide goggles to any of its other employees (all of whom were sighted in two eyes), however the HL ruled that SOC is assessed according to the particular vulnerability of the individuals likely to be impacted (notwithstanding that in any case, it may be found that the SOC owed to fully sighted employees also imposed a duty to provide goggles).
The Wagon Mound (No 2) [1967] PC
Held: The owners of the Wagon Mound were in breach of a DOC not to cause harm to other vessels in the vicinity of the harbour. Their vessel had leaked oil which had subsequently caught fire and caused damage to other vessels, and in failing to stem the discharge the owners had breached their duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it.
Lord Reid: A reasonable man would only neglect [a small][ risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it.
Standard of Care
- When assessing the required SOC it is ncessary to ask how practical it would have been for D to take precautions. In this instance taking precuations by stemming the discharge would have cost nothing, and therefore D was in breach of their SOC.
Baker v Quantum Clothing Group [2011] UKSC
Held: An employer had not breached its DOC to its employers by failing to provide them with a better noise protection. The Employer was a small employer (better protection could only be required of larger employers (Lord Mance dissenting on that point but in the majority)) and had adhered to the appropriate Department for Employment Code of Practice at the time - had therefore fulfilled the appropriate SOC.
3:2
Bolam v Friern Hospital Management Committee [1957] QBD
Held: 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 form of treatment.
Bolam Test (McNair J):
- Where D purports to have a special skill, D’s condiuct ought to be judged according to the standard of a reasonable person having the skill D claims to posess. (Not merely that of the reasonable man)
- The law will not reagrd a professional defednant as having fallen below the required SOC if it is shown that D’s conduct is regarded as proper by a responsible body of professional opinion.
Bolitho v. City and Hackney Health Authority [1996] HL
- Modified the Bolam test by stating that any professional opinion which D provides in defence of his actions must be reasonable. In ‘rare’ cases teh court will be willing to find that a professional opinion is unreasonable or illogical, and hence that D was in breach of thier DOC.
Wilsher v Essex Area Health Authority [1988] HL
Held: A junior doctor is held to the same SOC as a reasonably competent and fully qualified doctor.
Analysis
- Analogous to the reasoning on SOC in Nettleship v Weston.
Social Action, Responsibility and Heroism Act 2015
In determining whether D has breached their SOC the court will take into account where D was:
- acting for the benefit of society, and/or
- demonstrating a predominantly responsible approach towards protecting the safety or interest of others, and/or
- acting heroically by intervening in an emergency to assist an individual
If D can show that he was doing any one of these things the Court is more likely to hold that he was not in breach of his duty.
Academic Commentary:
- The significance is largely a negative one. It essentially provides more shades of grey where there really isn’t any need. The Act means that those people who may otherwise have been the defendant in a claim for personal injury are now potentially safe from alleged liability, assuming they can convince a court that they acting in was which satisfied the aforementioned considerations.
Montgomery v Lanarkshire Health Board [2015] UKSC
Held: A docor was under DOC to inform a pregnant mother of the risk of shoulder dystocia to the babay during birth and hence the potential choice to have a caesarean. However D failed to inform the the morther of all material risks and was hence in breach of their duty.
Analysis:
- Doctors (and other professionals) are under a duty to infrom their patients (clients) of all material risks flowing from a certain procedure.
Mullin v Richards [1998] CA
Held: A 15-year-old child was not in breach of a DOC to thier school-mate whom they had accidentally blinded while sword-fighting with plastic rulers. The SOC was not that of a reasonable adult, but of a reasonable 15-year-old, in this such a SOC had not been breached.
Hutchinson LJ
