Negligence: Breach of a Duty of Care Flashcards
Remember the four questions when discussing negligence: 1. Is there a duty of care? 2. Has there been a breach? 3. Is there actionable damage? 4. Are there any defences?
Blyth v Birmingham Waterworks (1856)
The basic test for breach of duty: “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” (Alderson B at p. 784).
Baker v Quantum (2011)
Lord Mance reaffirms that this area of negligence is not discussing whether a duty of care exists - this has already been established. The question is “what performance discharges that duty of care” [21].
Darnley v Croydon NHS Trust (2018) [also in Formulation of Duty deck]
The reasonableness test in breach assumes there is a duty of care in the first place. Negligence is thus the failure to take reasonable care in circumstances where they should have been able to do so - circumstances are therefore taken into account, e.g. working under stressful conditions in a hospital (Lord Lloyd-Jones [21-2]).
Healthcare at Home v Common Services Agency (2014)
The ‘hypothetical, Clapham omnibus’ discussed, whose various passengers are the ‘reasonable man’ the “most venerable” - and its multiple interpretations (e.g. the ‘right-thinking member of society’, the ‘officious bystander’, the ‘reasonable landlord’) - see Lord Reed [1-2]. The application of the ‘reasonable man’ is a legal standard by the Court, not established by e.g. eyewitness evidence. Circumstances are taken into account, however. In sum, the Court is ‘speaking’ to the standard that an ordinary person would understand [3].
Nettleship v Weston (1971)
This case regarded a learner driver D who crashed the car, causing injury to the instructor C.
The Court does not tailor what is reasonable by reference to what D is/was ‘capable of’; “his incompetent best is not good enough” (Lord Denning, p. 699). This shows the significance of the objective standard; however, circumstances are nevertheless taken into account.
Mullin v Richards (1998)
Two children play-fought with rulers; one of the rulers snapped and caused a splinter to hit C’s eye, blinding her.
The reasonableness standard does take into account age; a child is only held liable to a standard expected of reasonable people her age. It was held that the reasonable 15-year-old would not have foreseen that eventual damage caused, and thus did not breach the standard expected of her.
Orchard v Lee (2009)
This case is similar to Mullin v Richards. Whilst playing a game of tag, a 13-year-old boy ran backwards into supervisor C, causing injury. It was held that we have to judge what is expected of a reasonable 13-year-old, and thus whether it is reasonable for him to have foreseen the damage caused. The Court ruled in the negative; thus, the boy did not breach the duty reasonably expected of him (Aikens LJ [24]). However, this is subject to limitations. For example, one cannot tailor to incompetence.
Mansfield v Weetabix (1997)
D drove his lorry into C’s shop; earlier on, he had also been involved in two minor incidents. At the time, D had a malignant insulinoma which resulted in him being in a hyperglycemic state. Importantly, D was not aware of this condition.
It was thus held that the standard of care would be what was expected of the reasonable man unaware that he is suffering from a condition that impairs his ability to drive. Otherwise, “to apply an objective standard in a way that did not take account of [his] condition would be to impose strict liability” (LJ Leggatt at p. 1268). He was thus not in breach of his duty.
N.B.: Tort law and Criminal law approach this dilemma differently; it is very likely that D would have been held liable in criminal law. Interestingly, the Court was previously influenced by the criminal law approach and consequently found D liable in the similar case of Roberts v Ramsbottom (1980) (where D unknowingly suffered from a stroke whilst driving, injuring pedestrians). Conversely, then, Mansfield seems to cast doubt upon this decision. It seems that the question hinges upon what degree of ‘control’ D had over the car during the onset of his illness.
Dunnage v Randall (2015)
C was suing against his uncle’s insurance company after he was injured when his schizophrenic uncle set himself on fire (killing himself in the process). The insurance company argued that the uncle’s actions were deliberate and thus did not ‘count’ as ‘accidental bodily injury’. Arden LJ held that it would be unfair to lower the standard of reasonableness just because it happened that D was mentally unstable [153]. This is despite D not knowing what action to take to avoid injury for others; liability in these ‘hard cases’ is “the price [to pay] for being able to move freely within society despite his schizophrenia” [153].
Roe v Minister of Health (1954)
An example of how timing is important when determining negligence. The doctor, in this case, was actually trying to avoid the risks of infection, but the method employed inadvertently did the opposite. However, it was not negligible for him not to know at the time; one should not “look at the 1947 accident with 1954 spectacles” (Denning LJ [83]).
The Compensation Act 2006
This Act exemplifies how the utility of conduct is important when determining negligence. The Act was designed to combat the ‘compensation culture’.
s.1 allows the Court to take into account the deterrence effect of decisions (i.e., in granting/rejecting liability, looking at the wider ramifications of the decision: will it encourage/discourage a ‘desirable’ activity?).
The Social Action, Responsibility, and Heroism Act 2015 (SARHA)
This Act exemplifies how the utility of conduct is important when determining negligence. Specifically, it was legislated to ensure that people are not deterred from ‘heroic acts’ (as they might be done for negligence). It assumes a duty of care, for it focuses upon breach.
s.1 - When this Act applies
‘This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.’
s.2 - Social action
‘The Court must [note the use of mandatory language, s.2-4] have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.’
s.3 - Responsibility
‘The Court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others.’
s.4 - Heroism
‘The Court must have regard to 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.’
No further definitions are provided - what does s.4 really mean? How heroic do you have to be? More generally, don’t the Courts already have these considerations in mind?
Bolton v Stone (1951)
This case exemplifies the significance of the probability of harm when determining negligence. A batsman during a game of cricket hit a ‘record-breaking’ six out of the ground, hitting C who was standing outside her house (91 metres away). It was held that he was not liable. Lord Porter writes that “It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence” (p. 857-8).
In ordinary life some risk is apparent; even if all duties of care have been performed.
Overseas Tankship v The Miller Steamship Co (The Wagon Mound No. 2) (1961)
This case exemplifies the significance of the probability of harm when determining negligence. Here, D’s vessel - the Wagon Mound - leaked oil into the sea. The oil caught fire and destroyed nearby ships and wharf.
This case recognises the general principle of Bolton v Stone, but it “does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude” (Lord Reid, p. 642-3). In other words, even small risks can be ‘real’; one must ask whether the reasonable man would approve the neglection of a small risk given the circumstances. The defendants were held to be liable; although the likelihood of harm was low, the seriousness of the harm was high and it would have cost nothing to prevent it.
Blair-Ford v CRS Adventures (2012)
This case exemplifies the significance of the probability of harm when determining negligence. This was a tragic case, but there was no foreseeable risk - was simply a freak accident (see Globe J at [68]). C was throwing a Wellington boot backwards through his legs when he suffered significant spinal injuries.
