Chapter 2: Breach of Duty

Question 1

Introduction

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

2 Standard of care

Answer 2

This section will aim to look at questions such as:
* ‘How careful does a defendant need to be?’
* ‘Do we expect the same from adults and children? From professionals and amateurs? From
learners and those with experience?’

Question 3

3 Standard of care: The general rule

Answer 3

The usual starting point is that the defendant must behave as a reasonable person would in all
the circumstances. The classic description of the standard of care was given by Alderson B in
Blyth v Birmingham Waterworks (1856) 11 Exch 781:

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

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 4

3.1 The reasonable person - an objective test

Answer 4

In Glasgow Corporation v Muir [1943] AC 448 Lord Macmillan stated: This is an impersonal test which eliminates a personal question. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element.

Question 5

3.1.1 Act, not the actor

Answer 5

One principle that might help in
understanding this area of law is to consider that the test for setting the standard of care should
be based ‘on the act and not the actor’ illustrated in the following three cases.

Question 6

Nettleship v Weston [1971] 2 QB 691

Answer 6

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).

Question 7

Key case: Wisher v Essex AHA [1986] 3 All ER 801

Answer 7

A 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. It was held that a lower standard
of care did not apply to those training within a profession. The standard is tailored to the activity
the doctor is undertaking (the act), not to their individual level of experience (the actor)

A uniform
standard of care had to be adopted otherwise: ‘inexperience would frequently be urged as a
defence to an action for professional negligence’. However, the court in Wilsher did state that a
junior doctor would not, necessarily, be in breach if they were to seek advice from a more
senior/experienced colleague (as was the case in Wilsher).

Question 8

Key case: Condon v Basi [1985] 1 WLR 866

Answer 8

It was suggested that a higher degree of care would be required of a first division footballer than
that of a local league player. Thus, the standard of care in competitive sports is objective in differing sets of circumstances.

Question 9

3.2 The professional standard

Answer 9

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 10

Key case: Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Answer 10

Facts: The claimant was treated for depression. At the time there were two bodies of competent
medical opinion as to the procedure to be used in giving electro-convulsive therapy. Some
advocated the use of relaxant drugs whilst other psychiatrists did not. No such drugs were used, and the claimant suffered a fractured pelvis. It was admitted that if the drug had been used then the risk of the fracture would have been excluded.

Held: The test to determine a breach was stated by McNair, J as follows:
The test is the standard of the ordinary reasonable man exercising and professing to have
that special skill. A man need not possess the highest expert skill; it is well established law that
it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art […]

Question 11

Professional Negligence

Answer 11

The law in this area is often called ‘professional negligence’ in practice, and some solicitors and
barristers specialise in professional negligence specifically. However, professional negligence is
not a separate tort but a particular area where ordinary common law negligence applies and
operates: the ‘act not actor’ principle points to a different standard of care for professionals.

Question 12

3.3 Children

Answer 12

Whilst the standard of care is not adjusted according to the experience, or inexperience, of the
defendant as seen in Wilsher v Essex AHA [1986] 3 All ER 801, in the case of children the standard
required will be that of the reasonable child of the defendant’s age carrying out that act.

Question 13

Key case: Mullin v Richards [1998] 1 All ER 920

Answer 13

In Mullin v Richards, the defendant and claimant were 15-year-old schoolgirls. The claimant was
injured when a piece of plastic ruler broke off during a ‘play fight’ and hit her in the eye. The
Court of Appeal held that the correct test is whether a reasonable and careful 15-year-old would
have foreseen the risk of injury. On the facts, the schoolgirls could not reasonably have foreseen
any significant risk of the likelihood of injury (the practice was common and not banned in the
school). The defendant had not fallen below the standard of a reasonably competent 15-year-old.

Question 14

3.4 Illness and disability

Answer 14

On occasion the courts do modify the standard to take into account certain characteristics of
some defendants. Principally this occurs where the defendant is suffering from an illness that he
was reasonably unaware of. The following two driving cases illustrate how the courts will deal with
cases where the defendant is suffering an illness.

Question 15

Key case: Roberts v Ramsbottom [1980] 1 All ER 7

Answer 15

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 incapability amounted to a total
loss of consciousness or control.

Question 16

Key case: Mansfield v Weetabix Ltd [1998] 1 WLR 1263

Answer 16

Facts: A lorry driver crashed his vehicle into the claimant’s shop after suffering a hypoglycaemic
attack. There was no evidence to suggest that at any point prior to the crash, the driver knew
that his ability to drive was impaired.

Held: The standard of care was adjusted. The defendant was judged against the standard of a
reasonably competent driver who is unaware that he is suffering a condition that impairs his
ability to drive. The driver was thus found not liable.

Question 17

3.5 Summary

Answer 17

• The general rule is that a defendant must behave as a reasonable person would in all the
  circumstances.
• This is an objective standard – it is not a question of what could reasonably be expected of
  this particular defendant.
• The standard is set by the act, not the actor.
• Where the act being carried out is one which would ordinarily be carried out by a professional,
  the standard is based on what the reasonable professional in that field would have done.
• No allowance will be made for a defendant being junior / inexperienced in a particular field.
• Children need only reach the standard of a reasonable child of their age.
• The standard required may be adjusted in certain circumstances to take into account sudden
  illness / disability which the defendant was reasonably unaware of.

Question 18

4.1 Factors relevant to breach

4.1.1 Likelihood of harm

Answer 18

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

Question 19

Key case: Bolton v Stone [1951] AC 850

Answer 19

The claimant was injured by a cricket ball, hit out of the cricket ground. This had happened six times in the previous 30 years and the ground had a 7ft high fence around it. The chance of this happening was therefore so slight that there was no breach; the reasonable person would not have guarded against such a small risk. A reasonable person does not take precautions against
every risk, only those reasonably likely to happen.

Question 20

Key case: Haley v London Electricity Board [1964] 3 All ER 185

Answer 20

Facts: The blind claimant fell down a hole in the pavement dug by the defendant. The defendant
had taken precautions to protect sighted but not blind persons.

Held: The risk of causing injury to blind people was not so small that it should be ignored. The
defendant must tailor their conduct in light of the characteristics of people who they know might
be affected by their actions

Question 21

4.1.2 Magnitude of harm (seriousness of injury)

Answer 21

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

Question 22

Key case: Paris v Stepney Borough Council [1951] AC 367

Answer 22

The claimant had only one good eye, a fact known to his employers, the defendants. Despite this,
no protective goggles were provided, and he became blind when a piece of metal went into his good eye. The House of Lords held that the defendant was liable. Although the risk of injury was small, the consequences of the injury were significant (loss of sight). They should, therefore, have
taken greater care to ensure he wore protective goggles.

Question 23

Key case: Watson v British Boxing Board of Control Ltd [2001] QB 1134

Answer 23

The body regulating professional boxing breached its duty towards a boxer by failing to provide
suitable ringside resuscitation equipment and doctors, in part because the potential harm was
serious brain damage.

Question 24

4.1.3 Practicality of precautions

Answer 24

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.

Question 25

Key case: Latimer v AEC Ltd [1953] AC 643

Answer 25

The defendant’s factory floor became slippery following a flood and the claimant slipped on it.
The defendant had taken some precautions (laid down 3 tonnes of sawdust), but the only way to
guarantee safety would have been to cease operating the factory, or to employ many more
people to mop up spills. Neither of these precautions was justified given the small risk of injury to
the claimant.

Question 26

4.1.4 Benefit of the defendant’s conduct

Answer 26

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 27

Key case: Watt v Hertfordshire County Council [1954] 1 WLR 835

Answer 27

A fireman was injured in a fire engine on the way to answer an emergency call (a woman was trapped under a lorry). The lifting equipment required to deal with the emergency had not been properly secured in transit.

It was held that there was no breach by the firemen’s employer, as the
risk of injury was small, and the ultimate aim of saving life justified taking the risk. Where life is at
stake, abnormal risks may be justified. This is not a blanket exemption for the emergency services. Indeed, a fire authority was held to be liable for damage caused by going through a red light on
the way to a fire (Ward v L.C.C [1938] 2 All E.R 341).

Question 28

Compensation Act 2006 s 1

Answer 28

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 29

Social Action, Responsibility and Heroism Act 2015

Answer 29

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 30

4.1.5 Common practice,

Re Herald of Free Enterprise, The Independent, 18 December 1987,

Answer 30

If a defendant 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 31

4.1.6 ’State of the art’

Answer 31

This principle may also be relevant to establishing whether there has been a breach. 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.

Question 32

Key case: Roe v Minister of Health [1954] 2 QB 66

Answer 32

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

Question 33

Sport

Answer 33

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.

Question 34

Key case: Wooldridge v Sumner [1963] 2 QB 43

Answer 34

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.

Question 35

Key case: Watson v Gray, The Times, 26 November 1998

Answer 35

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 36

4.1.8 A balancing exercise

Answer 36

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.

Question 37

4.2 Proof of breach

Answer 37

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 38

4.2.1 Section 11 of the Civil Evidence Act 1968

Answer 38

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 39

4.2.2 Res ipsa loquitur

Answer 39

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.

Question 40

Key case: Scott v London and St Katherine Docks & Co (1865) 3 H&C 596

Answer 40

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:

(a) The thing causing the damage was under the control of the defendant or someone they are
responsible for;
(b) The accident would not normally happen without negligence; and
(c) 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 41

4.3 Summary

Answer 41

• All the facts and circumstances must be examined to see if the defendant has fallen below the
  standard of care ie breached the duty. This is a question of fact.
• The court consider all the circumstances of the case including:
• The likelihood of harm
• The magnitude of harm
• The practicality of precautions
• Any benefit of the defendant’s conduct
• Common practice
• The ‘state of the art’ at the time of breach
• Special rules in relation to sport
• The claimant must prove breach on the balance of probabilities.
• The claimant may be helped by relying on a relevant criminal conviction or in very limited
  circumstances, by the maxim res ipsa loquitur.

Question 42

5 Common practice in the context of professional negligence = The Bolam Test

Answer 42

5.1 The Bolam test
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.

Question 43

Key case: Bolam v Friern Hospital Management Committee [1957] 2 ALL ER 118 (Justice McNair)

Answer 43

[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

Question 44

Justice McNair also said:

Answer 44

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. This was confirmed by the House of Lords in Maynard v West Midlands RHA [1985] 1WLR 634. As long as the practice used by the defendant is accepted as proper by a
responsible body, there is no breach.

Question 45

De Freitas v O’Brien and Connolly [1995] 6 Med LR 108

Answer 45

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 46

Key case: Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

Answer 46

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.

Question 47

5.2 ’State of the art’ in a professional context, Key case: Crawford v Charing Cross Hospital, The Times, 8 December 1953

Answer 47

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.

Question 48

Statement by the General Medical Council

Answer 48

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 49

Assessment Focus: Bolam Test

Answer 49

Where the standard of care is the professional standard, the Bolam test is used to determine breach but the opinion must withstand logical analysis (Bolitho v City & Hackney
AHA).

Question 50

In a clinical negligence claim

Answer 50

When establishing breach in a clinical negligence claim (where the breach relates to a medical
act), focus should be on the application of relevant clinical negligence case law (Bolam v
Friern Hospital Management Committee, Maynard v West Midlands RHA, De Freitas v O’Brien
and Connolly, Bolitho v City & Hackney AHA and, if applicable Crawford v Charing Cross
Hospital and Gascoigne v Sheridan). In clinical negligence claims the courts are likely to focus
solely on the application of the relevant clinical negligence case law.

Question 51

In professional negligence claims

Answer 51

In other professional negligence claims (ie not clinical negligence cases) where the Bolam
standard applies, the focus of the courts is likely to again be on the application of the key
professional negligence case law but factors such as likelihood of harm, magnitude of harm
and practicality of precautions might help them to establish whether the opinion being relied
upon is logical (Bolitho v City & Hackney AHA).

Question 52

5.3 Failure to advise in relation to risks = Bolam Test inapplicable

Answer 52

Interestingly, 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.

Question 53

Key case: Montgomery v Lanarkshire Health Board [2015] UKSC 11

Answer 53

The claimant was of small build and diabetic. Evidence showed that diabetes can lead to larger
babies. During delivery of the claimant’s baby, the baby’s shoulders got stuck (shoulder dystocia)
and he was starved of oxygen, resulting in brain damage. The claimant argued that she should
have been warned of the risks of shoulder dystocia, and that had she been so warned, she would
have asked for a caesarean section. The obstetrician had not warned about shoulder dystocia
because the risk was so small. At trial, some of the experts supported this view.

Question 54

5.3.1 Decision in Montgomery

Answer 54

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.

Question 55

Witholding Information

Answer 55

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.

Question 56

Why is the Bolam Test inapplicable to risks

Answer 56

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 57

5.4 Summary

Answer 57

• Where the professional standard of care has been set, the starting point for determining
  whether the defendant has fallen below this standard is the Bolam test.
• Bolam established that professionals are not guilty of negligence if they acted in accordance
  with a practice accepted as proper by a responsible body of professionals skilled in that
  particular art.
• However, the court can find a professional negligent if it concludes that the ‘practice accepted
  as proper’ does not withstand logical analysis.
• Knowledge can change quickly in professional areas, and the court must determine how upto-date a defendant should be.
• 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.