Negligence - Breach of Duty

Question 1

Introduction

Answer 1

• Ct will look at Def conduct and judge whether it fell below required standard - if it did, Def will be in breach of duty
• Standard of care expected of particular Def is set by the law, taking account a range of factors
• Each Def in neg action measured against hypothetical reasonable person to see what Def did or didnt do, constituted lack of reasonable care in circumstances
• Not real living person and considerable scope for policy considerations to come into J conclusions, as to how reasonable person would or wouldnt have acted in relevant circumstances.

Question 2

Reasonable person test

Answer 2

• standard of care is objective and Def conduct judged against that expected of reasonable person in circumstances that Def had at time duty was breached.
  -Blyth v Birmingham Waterworks Co 1856 - Alderson J cited definition of breach of duty as “negligence is the omission to do something which a reasonable man, guided upon those considerations, would ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”
  -Nettleship v Weston 1971 - learner driver judged against standard of reasonably competent qualified driver, not because they have same capability, but learners must take responsibility for that that until they learn how to drive they pose significant risk to other drivers and pedestrians and public entitled to expect standard level of care set at reasonably competent driver standard. Avoids unfairness to Cl why should injured person by experienced driver receive comp but by learner driver doesnt. Will still have insurance.
  -Roberts v Ramsbottom 1980 - driver didnt realise had suffered stroke immediately before setting off on journey held responsible for consequences of lack of control of vehicle. Didnt appreciate he had suffered a stroke and still retained sufficient control of bodily movement to fall short of defence of automatism, but continued to drive anyway. There was some evidence he felt unwell before driving and reasonable person wouldnt have driven
  -Mansfield v Weetabix Ltd 1998 - Ct of A measured Def’s driving against that of reasonably competent driver unaware that he was suffering from impaired ability to drive. Driver wasnt negligent, Leggatt LJ said “to apply objective standard in way that didnt take into account drivers condition would be to impose strict liability, but this is not the law”. Any change in law he though desirable would have to be effected through legislation.
• assessed the degree of control Def had - Neill LJ stated “driver would be able to escape liability if actions at relevant time were beyond control. If retained some control, albeit imperfect, and driving was below standard then remains liable”
  -Taylor v Tanner 2004 - Def driver collided with Cl vehicle after epileptic fit while driving - fit had taken any semblance of control of vehicle and no evidence to suggest that Def had failed to take medication or obtained licence by misrepresenting his illness, so was no breach of duty.
• concept of reasonable person is an abstraction, but objective test does have subjective element as standard is what reasonable person would do in particular circumstances Def was in at the time.
  -Glasgow Corporation v Muir 1943 - urn of hot tea carried down narrow passage but handle fell off and one of kids nearby scalded. Manageress was alleged to be negligent for allowed urn to be carried by party of visitors by kids, but H of L held no neg as on facts couldnt be foreseen that accident would occur.
• Def only liable if reasonable person would have foreseen damage in the circumstances at the time of the alleged breach of duty.
  -Roe v Minister of Health 1954 - Cl paralysed after injection at hospital had phenol leaked into it. AT time, not now that phenol, that was used in bath that contained syringes, would leak through cracks invisible to naked eye, so no negligent as couldnt have foreseen. Circumstances only discovered after event, and Ct cant judge Def with benefit of hindsight.
• Standard of care expected of someone suffering psychiatric illness or episode.
  -Dunnage v Randall and Another 2015 - Cl at home when visited by uncle, uncle became agitated, went to his car returning with can of petrol and lighter, had psychiatric episode and doused himself with petrol. Cl tried to stop him setting light to himself but was seriously injured and uncle eventually died. Medical evidence found uncle was schizophrenic so claim started against estate and insurers.
  -Ct of A held should make no distinction between physical and mental illness - for adults, whether duty of care was breached was to be assessed by objective standards of reasonable person. Unless Def could establish condition entirely eliminated responsibility for actions, Def would remain vulnerable to liability.
• injury was accidental as he “clearly lost control of his ability to make choices”, Ct accepted lighter may have sparked accidently during struggle and he didnt mean to cause injury but had been failure to exercise reasonable care as judged by objective standard so Def insurers liable to pay damages.

Question 3

Standard of behaviour in Sport

Answer 3

• duty of care owed between participants in sport, and between officials and spectators - generally considered consent given to certain risks inherent to normal play, many examples of behaviour that given rise to liability in tort if neg if game was played in way that was outside of the rules.
• in football, late and dangerous tackle that ended up with broken leg was proven to be negligent (Condon v Basi 1985).
• simple error of judgment isnt negligent as per Pitcher v Huddlesfield Town Football Club 2001 where mistimed tackle during football that ended Cl’s career was held by J at first instance to be error in judgment rather than neg.
• Caldwell v Maguire and Fitzgerald 2002 - Cl jockey injured during race when hose infront shied unexpectedly and said that 3rd rider Def had brought about risk by riding negligently. Ct of A recognised fast moving nature of sport so decisions taken under great pressure so even though actions might be subject of censure within sport, didnt automatically amount to culpable negligence in law.
• one of most dangerous sports is rugby and high level of responsibility placed on ref, particularly when in control of junior match and in context of spinal injuries caused by collapsed scrum.
  -Smolden v Whitworth 199& - ref of under 19s match found neg as failed to enforce procedures to minimise injury and defence that player had consented to risk wasnt allowed as couldnt be said to have agreed to ref’s failure to apply rules of the game.
  -Vowles v Evans 2003 - 1st Def had appropriate qualifications to ref amateur match and no higher standard than basic competence required, ref alleged to have failed to comply with rules of game re sub of players into scrum and decisions not made in heat of match but during time play temp stopped. - As ref could have insisted on non-contested scrums.
  -inexperienced player who changed position in scrum to one not trained in had been playing with Vowles for nearly hour before collapsed and many problems with scrummages during play. Refs own notes show increased difficulties experienced after makeshift front row put together. Ct of A held causal link between neg of ref and accident when Vowles sustained injury

Question 4

Claims against schools

Answer 4

• pupils sue school alleging duty of care on school premises and school trips.
  -Chittock v Woodbridge School 2003 - Cl (17) and w senior boys joined skiing trip for younger students, older kids had some experience skiing but behaviour cause of concern for teachers as seen skiing off-piste in hazardous conditions and were reprimanded. Teacher sought and got assurance wouldnt ski off-piste again but ski passes not withdrawn.
• following day Cl seriously injured when lost control while skiing down partially closed piste. Trial J found teachers neg for failing to take steps to stop Cl skiing but also found Cl 50% comtrib neg.
• Ct of A allowed appeal and held proper q was whether reprimand of teacher following initial incident was within normal range of responses - On facts, no breach of duty and issues of causation or contrib neg were irrelevant.
  -Simonds v Isle of Wight Council 2003 - child broke arm falling off swing at school sports day, Ct found had been properly supervised and wasnt reasonable to impose duty on school to immobilise swings, as needed to balance risk created by swings and benefits to kids at school.
  -Bradford-Smart v West Sussex County Council 2002 - Cl complained of bullying on and off premises, Ct of A held reasonable body of opinion would agree school done as much as could reasonably be expected to protect Cl from bullying off premises and was insufficient evidence of bullying on premises - even so steps wouldnt had any effect and couldnt be expected of Def school.

Question 5

Claims against children

Answer 5

• Minors get no immunity (but have no assets so not worth suing!) but if does cause accident through neg, appropriate standard of care to measure against is that of reasonable child or same age and NOT adult.
  -Mullin v Richards 1998 - Ct of A confirmed appropriate measure of foreseeability of harm to be that of normal prudent child of same age and same circumstances as Def. Cl and Def 15 yr old girls having fake fight with plastic rulers, one ruler broke and piece got into Cl eye causing her to lose sight. Ct of A couldnt find evidence of lack of reasonable care and found accident happened during game so no justification for attributing foresight of personal injury.
  -Orchard v Lee 2009 - Def running backwards during game of tag and collided with Cl who got substantial injuries. - Held boy engaged in normal behaviour in part of school ground where running and games permitted so not neg.

Question 6

Factors determining standard of care -

Answer 6

• Def not expected to achieve perfection but reasonable person taken as having weighed up risks and benefits of situation when decided what they should and shouldnt do.
• Ct also look at policy element - for ex if deciding whether to make finding of fault in med neg, Ct may take into acc when setting standard of care effect of health auths finances or morale of members of that professional group

Question 7

1. Degree of probability that damage will occur (Magnitude of risk)

Answer 7

• care has to be taken in respect of risk of harm that is reasonably foreseeable - foreseeability relative, greater risk of damage, more care must be taken.
  -Bolton v Stone 1951 - Cl struck by cricket ball when outside her house. Evidence shown balls only be hit outside of grounds 6 times in 30 yrs so Def not held liable as risk so small reasonable person justified in taking no action to deal with such low risk. Def already taken steps to reduce risk of balls being hit out of grounds, shot was prodigious stroke and no further precautions required to guard against unusual risk.
  -Hilder v Associated Portland Cement Manufacturers Ltd 1961 - Def repeatedly allowed kids to play football on waste ground next to busy road. Balls often kicked or thrown over road and on one occasion ball hit motorbike causing crash, and cyclist died. As result of frequency of incidents, and knowledge on part of Def, risk of accident was considered high and Def was held in breach of duty of care.

Question 8

2. Magnitude of likely harm

Answer 8

• greater the injury that is risked, the greater the precautions that a reasonable person would take.
  -Paris v Stepney Borough Council 1951 - one eyed welder employed by Def lost his sight as not provided with safety goggles. Def neg as was aware of disability and should have taken greater care. If Def knows some particular characteristic of Cl, amount of care required to meet test of reasonableness may be greater
  -Another example would be organising sporting event for disabled participants person must take greater responsibility for safety than that of able-bodied athletes.
• even when participants able-bodied, qualified supervision of gymnastic events may be needed to demonstrate reasonable care.
  -Fowles v Bedfordshire County Council 1995 - Ct of A held local auth negligent in failing to instruct young adults using youth centre gym on correct use of equipment and crash mats.
• Def expected to take extra care when know or should know Cl is vulnerable. Def knew of particular characteristic of Cl which meant they should take more care but may be Defs should be aware of groups in society that may be more vulnerable and more affected by their activities.
  -Haley v London Electricity Board 1964 - Def dug hole in pavement and put sledgehammer handle diagonally across one end to prevent people falling in, Cl who was blind tripped over hammer and fell in hole. Def argued duty only to ordinary pedestrians but H of L held 1 in 500 blind so reasonably foreseeable that blind person would be at risk of suffering injury, so Def liable.
• probability of harm and gravity of likely harm together make up examination of magnitude of risk posed by Def’s conduct

Question 9

3. Importance of objective acheived

Answer 9

• Ct may balance risk of injury to Cl against importance of objective to be achieved by Def.
  -Watt v Hertfordshire County Council 1954 - fireman injured by sudden movement of heavy jack in vehicle that wasnt adapted to carry it, jack was needed at scene of accident to save life of trapped person. Def not neg as objective of taking jack to accident as quickly as possible justified the risk - Cts now may say was negligent as now those driving emergency vehicles not automatically excused from normal rules of road. Have to balance utility of Def activities with other factors.
  -King v Sussex Ambulance NHS Trust 2002 - Cl employed by Def and was injured while moving elderly patient upstairs from bedroom down narrow flight of stairs with bend, for very brief period King had to take entire weight of patient. Ct of A considered factors on whether breach of employer’s duty of care to employee, including need to balance risk to its employees and to public who relied on services and what could have practicably been done in circumstances to prevented accident - on facts no neg
• in emergency Ct not require Def to have acted in way that might, with benefit of hindsight, be most appropriate.
  -Day v High Performance Sports 2003 - Cl failed properly to attach climbing rope while climbing indoor climbing wall belonging to Def. When Def attempted rescue, Cl froze and fell - Cl argued method of rescue had been inappropriate but was found Def had acted reasonably given emergency, Def had to assess risks and take reasonable steps to reduce risk of injury, which had been done.
• other values less easy to assess - such as death toll from RTA could be eliminated by imposing speed limit of 5mph but consequences would be unacceptable in industrialised society.
• line has to be drawn at which person’s conduct becomes socially unacceptable, normally done by Parliament, for ex speed limits imposed
• Social Action, Responsibility and Heroism Act 2015 (SARAH 2015) instructs Ct to take account of variety of concerns relating to motives and general standing of Def in deciding whether breach of standard of care. Passed to protect “have a go heroes”, emergency services and predominantly responsible employers from threat of damages claim where reasonable and appropriate action had been taken to protect individual.
• response to concerns that people may be put off taking part in voluntary activities, helping others or intervening in emergency due to worry of risking liability - aim to ensure people such as employers been taking a responsible approach towards safety of others truing activity and something goes wrong, Ct take into acc all circumstances.
  -SARAH 2015 contains measures to reassure people that if acting for benefit of society, intervening in emergency or demonstrating generally responsible approach towards safety of others during activity, then if something goes wrong and they are sued for neg or for certain breaches of stat duty, Ct will take into acc full context to actions.
  -3 key qs SARAH 2015 requires Ct to ask are:
  1. Was Def acting for benefit of society?
  2. Did they demonstrate a predominantly responsible approach?
  3. Was Def acting heroically in emergency situation?
• doesnt impose legal duty on members of general public to assist people who are in peril, rather provides that if one tries to effect rescue Ct have to consider above questions in assessing potential liability
• SARAH 2015 has been subject to severe criticism on ground that carries some disturbing implications for claims in negligence - been argued that places too much emphasis on potential hero and insufficient consideration to potential implications for victim in scenario. In particular, SARAH 2015 asks Ct to look more closely at intentions of hero rather than reasonable standard of care by which they are judged.
• may give professionals in emergency contexts more freedom and scope to take risks - clear that a lot will turn on how Cts interpret vague phrases “acting for benefit of society” and “predominantly responsible approach”. Could be seen that restating common law position.

Question 10

4. Burden of taking precautions against risk

Answer 10

• once risk identified as being foreseeable, difficult q arises of whether Def should have taken precautions against risk.
  -Latimer v AEC Ltd 1953 - floor of Def factory became flooded after heavy rain, Def took all possible steps to minimise danger short of closing factory, Cl slipped and was injured but Def not liable - Ct weighed up degree or extent of risk against cost eliminating it

Question 11

5. Conformity with accepted practice

Answer 11

• conformity with standard and accepted practice may be sufficient to fulfil standard of reasonable care and particularly relevant when considering professional neg claims.
• Luxmore-May v Messenger May Baverstock (a Firm) 1990 - alleged that Defs neg failed to identify 2 pictures belonging to Cl as those of celebrated painter, at auction sold for £840, then at another auction after sold for £88k. Cl sued for difference between prices
• Ct of A considered standard of care and skill to be expected of provincial auctioneers to be similar of general medical practitioner - Ct would be slow to say valuer guilty of prof neg merely because failed to spot it if he had done job honestly and with due diligence. Def not neg since divergent views about painter could have been held by experts of similar standing
• Sup Ct confirmed view in Baker v Quantum Clothing Group Ltd & Ors 2011 - Cl worked in Def clothing factories from 1971 to 1989 and suffered loss of hearing due to noise generated by machines. 1st Def argued level of noise within range of what deemed acceptable under Code at time, Sup Ct accepted argument as said code was official and clear guidance that set appropriate standard upon which reasonable and prudent employer could legitimately rely upon conducting business until late 1980s but 2nd and 3rd Def special position as had actual knowledge of risks to hearing from earlier date.
  -Lloyds Bank Ltd v Savory 1993 - Def neg even though followed standard banking practice. Some practices common but Js may still find give rise to foreseeable risk which greater steps should have been taken to avoid.
• where sol followed practice used by many in profession, which was approved by Law Society and Council of Mortgage Lenders but Ct of A found in Patel v Daybells 2002 that relevant experts had already evaluated merits of practice and that their conclusion to approve it meant that practice in question met test in Bolitho v City and Hackney Health Authority 1997
  -Shakoor v Situ 2000 - J required to determine standard of care against which to assess conduct of practitioner of alternative medicine. Mr S consulted Def, who was qualified in use of Chinese herbal medicine, but not qualified as medical practitioner in UK. Mr Shakoor took several doses of herbal medicine prescribed by Def and suffered idiosyncratic reacting that led to death from liver failure. J held Def not be judged against standards of orthodox western medicine as that wasnt skill he held himself to possess - Dec’d looked for alternative route to western medicine but practitioners of particular art couldnt be permitted to determine standards by which they should be judged within legal system
• J found inbetween position that required practitioner of alternative medicine to recognise was practising alongside western medicine. Not enough to be convinced of efficacy of herbal remedies by ref to own cultural heritage, also had responsibility of scientific writings in orthodox press which might provide another perspective. Cl widow relied on published articles in western medical journals that suggested link between Chinese herbal remedies and liver damage.
• on facts, J held articles didnt present such clear evidence of danger of remedies as should have put reasonable practitioner on notice of risk of type of reaction suffered by deceased so Def not neg - practitioner who was not familiar with orthodox literature could discharge duty by belonging to org which would periodically review literature and keep members informed of state of scientific knowledge in field.

Question 12

Special Skill

Answer 12

• Def who claims to have a special skill is judged by standards of reasonable person possessing skill they claim to possess
• rule set out in Bolam v Friern Hospital Management Committee 1957 - “test is standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at risk of being found negligent.. Dr not guilty of neg if he has acted in accordance with practice accepted as proper by responsible body of medical men skilled in that particular art”
  -Bolitho v City and Hackney Health Authority 1997 - Lord Browne-Wilkinson added req that responsible body of professionals should be able to demonstrate that body of opinion was supported in their evidence has logical basis. Accepted that on occasions J would find body of professional’s expert opinion illogical would be rare. Evidence of standard to be expected of Def would normally be found in testimony of members of safe professional unless task or skill in q was common to more than one profession.
• For ex, evidence of structural engineer wouldnt be admissible evidence on q of neg of a charter surveyor, but if within profession exist areas of specialist expertise, Cl entitled to expect Def will exercise reasonable skill by ref to expertise claimed.
• Where hospital treatment by specialist unit of medical staff, no concept of team neg. Standard of care to be expected of any individual member of team is determined by ref to post held by Dr and acts which Dr has elected to perform. Inexperience is no defence and junior Dr may meet his own duty of care by seeking advice and skilled assistance of more specialist Dr or colleague (Wilsher v Essex Area Health Authority 1988)
• attempt by Ct of A to introduce distinction between error of clinical judgment and neg rejected by H of L in Whitehouse v Jordan 1981 - Cl alleged Def Dr pulled too long and too hard with forceps during delivery of baby. Restate Bolam test - provided reputable body of medical opinion would support practice of Def he was not negligent so some errors amount to neg and others dont.
• Bolam test applicable to diagnosis and treatment - also extent Dr should inform patient of risk with particular treatment so patient can give consent. Used to be decision on when to inform was judged by Bolam standards - should reasonably competent Dr have advised patient of risk (as per now overruled Sidaway v Bethlem Royal Hospital Governors 1985 but now governed by Montgomery v Lanarkshire Health Board 2015).
  -Ct moved to more forward-thinking that patient should be notified of “material risks” - material if reasonable person in patient’s position was likely to attach significance to it or if Dr is or should reasonably be aware patient would likely attach significance to it.
• some situations where Dr considers that disclosure of certain info regarding risks will undermine patient’s ability to cope with condition. If such situation of therapeutic privilege exists, Dr will be justified in remaining silent on risks - difficulty is medical view that patients may mot undertake treatment likely to be beneficial if they know there is even a slight risk involved, balanced against patient’s right to know so they can give consent based on genuine choice.
• complex circumstances surrounding most medical treatment continue to provide Cts with issues around application of Bolam test
  -Burke v Leeds Health Authority 2001 - Ct of A upheld appeal by Def on grounds medical staff had explained treatment options to parents of child suffering from leukaemia at earlier time and failure to remind them that particular treatment could be delayed didnt amount to neg - intensive treatment consented to for son resulted in severe mental and physical disability.
• Moy v Pettman Smith 2005 - contested issue was advice given by Def barrister to client in relation to whether to accept payment into Ct or to proceed to trial. H of L confirmed that advocates were no longer immune from suit but pointed out that public interest did require that app of principle should not stifle advocates’ independence of mind and action in manner in which they conducted litigation and advised their clients. Possible that with hindsight Def advice had resulted in wrong decision but Ct not convinced that it was mistaken advice as all circumstances had been represented. Def barrister was held to standard of reasonably competent barrister.

Question 13

Proof of negligence

Answer 13

• burden of proof lies on Cl to provide all elements of tort, including claim based on neg that Def breached duty of care by failing to act as reasonable person.
• may be reversed under s11 Civil Evidence Act 1968 which provides conviction on criminal charge is admissible as evidence in civil case based upon same facts. To escape liability, Def must prove not negligent. Could apply in motor accident cases, if Def convicted of dangerous driving, rebuttable presumption of neg is created.

Question 14

Res ipsa loquitur

Answer 14

• Def must prove not neg if principle of res ipsa loquitur applies.
• some cases may be difficult or impossible for Cl to show exact way accident occured - if no evidence can be adduced necessary inference may be raised by using maxim res ipsa loquitur - that is thing (event) speaks for itself.
• to plead it, Cl must prove 2 things:

1. thing causing the damage or event must have been under Defs exclusive control - mere occurrence of accident should point to neg on part of Def and no one else.
   Scott v The London and St. Katherine Docks Company 1865 - Cl struck by object falling from Def premises, was sufficient to establish requirement of control. Ct have been flexible with req and for ex in defective products cases have said control lies in manufacturing process (Grant v Australian Knitting Mills 1936). Even though injury may have been caused long after product left factory, provided the goods in q reach consumer in condition in which they left the factory.
2. accident should be of a sort that doesnt happen in absence of neg - for ex stones not normally found in buns, barrels dont normally fall from upstairs windows unless there has been neg on someone’s part.

• Ct asked to draw inference from circumstances.
  -Hall v Holker Estate Co Ltd 2008 - Mr Hall on holiday at holiday park owned and operated by Def who set up portable, tubular goal frame on area of grass that should have been secured. Mr Hall was injured during family game of football when goal frame toppled onto him causing injury to jaw and teeth.
  -Cl was lawful visitor under OLA 1957, and was owed common duty of care set out in s2 OLA 1957 but to be successful Cl was required to prove duty had been broken. J held had been lack of safety at time of incident but Cl had not established goal frame was unstable for any length of time and not sufficient evidence to prove required lack of reasonable care. Ct of A disagreed, holding J failed to draw appropriate inference from facts and allowing Cl appeal. Possible pegs had been removed by other campers during day but system of checking should have been in place wasnt working well enough to identify risk at time.
• dispute of effect of res ipsa loquitur as one view is Def has to prove not neg, but other is Def can escape liability by giving explanation for accident which is consistent with absence of neg on their part
  -Henderson v Jenkins 1970 - brakes failed on Def lorries and Cl husband killed in accident. Def could prove they had maintained lorry in line with manufacturers recommended practice but H of L held Def failed to rebut inference of neg raised by Cl
  -George v Eagle Air Services Ltd 2009 - Cl partner, mechanic, killed in plane crash while travelling on plane belonging to employer, Cl argued partners death caused by pilots neg, but only evidence to support was accident investigation report that she tried to have admitted as evidence very late. Not permitted and had to fall back on res ipsa loquitur.
  -Privy Council held although when air travel more dangerous maxim hadnt been used, now case that aircraft didnt and shouldnt crash often. if did, not unreasonable to expect there to be search for explanation - Def hadnt put forward explanation for crash or offered reason why it was prevented from doing so, so by this behaviour failed to rebut presumption created by res ipsa loquitur
  -Ng Chin Pui v Lee Chuen Tat 1988 - Privy Council held if Def successfully negates either of conditions of res ipsa loquitur. Cl left with having to prove by affirmative evidence that was Def carelessness that caused damage.
• Def’s coach crossed central reservation and collided with bus which Cl travelling on opposite carriageway. Cl relied on res ipsa loquitur but Def explained incident by referring to car which crossed in front of coach and caused driver to swerve so Privy Council found for Def.