Negligence - breach of duty

Question 1

Blyth v Birmingham Waterworks Co (1856) 11 Ex 781

breach of duty

Answer 1

Decision
The Court held in favour of the defendant. There was no evidence by which the defendant could be found in breach of duty.

This Case is Authority For…
Alderson B set out the classic definition of negligence:

‘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.’

Had the defendant breached their duty of care in negligence?

The defendant was a water supply company. By statute, they were under an obligation to lay pipes and gratuitously provide fire-plugs for putting out fires. There were strict statutory requirements for how the pipes and plugs should be laid. The defendants complied with these requirements, and otherwise constructed the plugs according the best-practice requirements of the time. However, due to extreme cold during one of the coldest winters on record, a fire-plugs came loose. This caused flooding which filled the claimant’s house with water. The County Court held the defendant liable in the tort of negligence for the damage to the claimant’s house. The defendant appealed.

Question 2

Darnley v Croydon Health Services NHS Trust [2018]

breach of duty

Lord Lloyd-Jones JSC:

[21] ‘I consider that the judgments of the majority in the Court of Appeal elide issues of the existence of a duty of care and negligent breach of duty. They place emphasis on what a reasonable person would have done and could reasonably be expected to have done in the context of a busy A & E department…’

[22] ‘… So far as substantive liability is concerned, the requirements of [breach] and causation will remain effective control factors. It is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty.’

= Needs have regard to all the elements of the negligence claim. We can impose a duty but that does not mean that there will be any liability.

Answer 2

Decision
The Supreme Court held in favour of the claimant.

This case was not a novel situation. It was sufficiently analogous to the many cases stating that A&E medical staff owe a duty of care to patients. The defendant’s duty was to take reasonable steps not to cause foreseeable injury to patients: these facts fell within that duty. The fact that the duty was delegated to non-medical staff instead of medical staff was irrelevant.
The receptionist had not acted as a reasonable A&E receptionist ought to have done, as she did not follow the known and established policy.
Since the claimant would have remained in the hospital if he had known the truth and it was reasonably foreseeable that he might leave if provided incorrect information, causation was unbroken.
The defendant was therefore liable in negligence.

This Case is Authority For…
There is no need to consider the test in Caparo v Dickman [1990] UKHL 2 to hold that there is a duty of care where the facts of the case are sufficiently analogous to existing, non-novel cases. Where the precise facts are unusual but the overall issue essentially falls within an existing category of duty of care, a duty exists.

A medical receptionist owes patients a duty to take reasonable steps not to provide misleading information as to the availability of medical care. The standard of care is that of an averagely competent and well-informed A&E receptionist.

A claimant’s decision-making process cannot be assessed in isolation from the breach. Where a claimant’s decision is influenced by the breach, it is less likely to break the chain of causation.

The claimant attended Accident & Emergency after suffering a blow to the head. He had severe headaches which were getting worse. The receptionist informed him that there was a waiting time of four to five hours. In reality, the hospital’s policy was that he would be seen in half an hour, at which point a triage nurse could better advise him (depending on his symptoms). After 19 minutes, the claimant left as he felt too ill to stay. He did not inform staff that he was leaving. The claimant later collapsed and suffered brain damage. He sued the hospital for negligence.

Issue(s)
Did the A&E receptionist and hospital owe the claimant a duty to provide him with accurate information?
If there is a duty, what standard of care is owed?
Did the claimant’s decision to leave break the chain of causation?

Question 3

Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49

‘clapham omnibus’

When the court referred to what a “reasonably well-informed and normally diligent” (RWIND) tenderer would understand from the criteria in an invitation to tender, it was applying a hypothetical construct.

Answer 3

The standard to be applied is objective. It is misconceived for a party to seek to lead evidence from actual passengers on the Clapham Omnibus or (as in this case) actual tenderers, as to how they would have acted in a given situation or how they interpreted the tender document. Lord Reed noted that an objective standard to be applied by the Court is essential to ensure equality of treatment and to ensure that decisions can be taken with the efficiency required within the context of commercial tendering.
= does not equate to a public survey, determining a legal standard informed by expert opinions separate thing from what ppl do.

The case concerned a public sector tendering process carried out by The Common Services Agency (CSA) in 2010. Healthcare at Home Limited (HHL) were the incumbent health services provider to CSA. Following tender they were replaced by a new services provider. HHL complained about the tender process on the basis that:

(a) The invitation to tender was insufficiently clear; and
(b) The reasons given by the CSA for rejection of HHL’s tender were unclear and lacking in detail.

Question 4

Nettleship v Weston [1971] 2 QB 691

breach of duty - skill

Lord Salmon’s dissent:

• He believed that the beginner driver ‘does not owe the instructor a duty to drive with the skill and competence to be expected of an experienced driver’ because the instructor knows that the learner does not possess these skills (at 705). Alternatively, ‘the instructor voluntarily agrees to run the risk of injury resulting from the learner’s lack of skill and experience’ (at 705). He would have allowed thevolentidefence to defeat this claim.

On the issue of contributory negligence:

Lord Denning and Salmon LJ agreed that the claimant had contributed to his injury. Both the learner and instructor ‘should be regarded as equally to blame, with the result that the injured one gets damages from the other, but they are reduced by one half owing to his own contributory negligence’ (at 703 per Lord Denning).

Megaw LJ dissented on the issue of contributory negligence and would have awarded full damages to the claimant.

Wider considerations of the case:

Denning observed that the high standard imposed on learner drivers was largely the result of legislation requiring drivers to be insured against third party risks:

> … we are, in this branch of the law, moving away from the concept: ‘No liability without fault.’ We are beginning to apply the test: ‘On whom should the risk fall?’ Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her (at 699–700).

Answer 4

Held: Lord Denning and Megaw concurring:

• On appeal, the claimant was successful. The defendant had breached her duty of care. A motorist’s duty applies to passengers as it does to other road users and the standard of care in negligence is an objective one. The fact that the defendant is a learner driver is not an excuse for failing to meet that standard.
• the defence ofvolenti non fit injuria, or voluntary assumption of risk, could not succeed on these facts. The defence had become ‘severely limited’: ‘Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence’ (at 701 per Lord Denning). The claimant in this case had not agreed to waive any claim for injury: ‘Quite the contrary. He inquired about the insurance policy so as to make sure that he was covered’

Facts: The claimant, Eric Nettleship, gave his friend, the defendant, Lavinia Weston (a learner driver) , driving lessons. On one lesson, after turning a corner, the defendant panicked and failed to straighten the car. It mounted the curb and crashed into a lamppost. As a result of the crash, the claimant’s knee-cap was broken and so he brought a claim in negligence. At first instance it was held that the defendant had not breached her duty of care and that the claimant had consented to the risk of injury.

Question 5

Mullin v Richards [1998] 1 WLR 1304

breach of duty - age

Answer 5

The Court of Appeal held that the defendant was not liable. A reasonable 15 year-old would not have foreseen any significant risk of injury from the parties’ behaviour.

This Case is Authority For…
A child should only be held to the standard of a reasonable child of the same age

The claimant and defendant were both 15 year-old girls who were play-fighting with rulers at school. The defendant’s ruler broke and a fragment of plastic permanently blinded the claimant in one eye. The claimant sued the defendant in negligence. This sort of behaviour was common in the school, and this was the first injury to occur.

Issue(s)
What standard of care does a child owe to others in negligence

Question 6

Orchard v Lee [2009] EWCA Civ 29

breach of duty - age

[24] ‘the question is whether a reasonable 13-year-old boy, in the situation that SL was in, would have anticipated that some significant personal injury would result from his actions in playing tag as he did … A reasonable 13-year-old boy in that position would not have regarded such an injury as being sufficiently probable to lead him to anticipate it. Therefore SL did not fall below the standard of care required of him.’

= the question is what the reasonable child of the same age would foresee? (takes into account the perception of risk)

Answer 6

Outcome: Not liable

Legal principle: A child is judged by the standards of a reasonable child of his age rather than a reasonable adult. Unlike an adult defendant, the level of carelessness required for breach of duty by a child will be very high. The defendants conduct was normal for that of a 13 year old playing a game of ta

The defendant was playing tag with another pupil of the same age when he ran into the claimant causing her injury.

Question 7

Mansfield v Weetabix Ltd [1998] 1 WLR 1263

breach of duty - disability

This case might appear to conflict with Roberts v Ramsbottom [1980] 1 WLR 823, where a sick defendant was held liable for injuring the claimant after he had a stroke behind the wheel. The Court of Appeal in Mansfield disapproved of, but did not overrule, Ramsbottom.
The Court of Appeal in Mansfield argued that the distinction between the two cases is as follows. The defendant in Mansfield had no reason to believe he was sick and lost the ability to appreciate that he was out of control once he became hypoglycaemic. By contrast, in Roberts, the defendant had warning signs that someone was wrong before he hit the claimant. He was aware that he did not feel well. Therefore, the defendant in Roberts should have stopped driving before he hit the claimant.

In any case, since Mansfield is a Court of Appeal decision and Roberts was a High Court case, Mansfield is the greater authority. If in doubt, apply Mansfield.

Answer 7

The Court of Appeal held for the defendant. The standard of care should be modified in this kind of case to take into account the defendant’s unknown illness. A reasonable person in the defendant’s position would not have acted differently, so the defendant was not negligent.

This Case is Authority For…
Where the defendant is not aware that he has an illness which may cause him to harm others, he is held to the standard of a reasonable person who both has that illness and is not aware of it.

The defendant was unaware that he had a disease called malignant insulinoma. This disease can cause hypoglycaemic states where the individual’s blood sugar drops to dangerously low levels.

The defendant was driving when he entered a hypoglycaemic state. This caused him to drive erratically for a short period before crashing into the claimant’s shop and causing property damage. During the period in which he was driving erratically, the defendant was not aware that his driving was impaired. The claimant sued for negligence.

Issue(s)
What standard of care should be imposed on a driver who suffers from a physical illness?

Question 8

Dunnage v Randall [2015] EWCA Civ 673

breach of duty - disability

Arden LJ: “The objective standard of care reflects the policy of the law. It is not a question of the law discriminating unfairly against people with physical or mental illness. The law takes the view as a matter of policy that everyone should owe the same duty of care for the protection of innocent victims. It would after all, in many cases, be open to a person who knows he has reduced abilities to take account of those abilities in what he does … There will be hard cases, as this case may be one, where a person does not know what action to take to avoid injury to others. However, his liability is no doubt treated in law as the price for being able to move freely within society despite his schizophrenia.”

Answer 8

C’s claim succeeded; A had acted negligently towards C as he fell below the standard of care required, which is that of a reasonable person despite his mental impairment
Distinguish from Mansfield: D knows he is suffering from the condition

‘There will be hard cases, as this case may be one, where a person does not know what action to take to avoid injury to others. However, his liability is no doubt treated in law as the price for being able to move freely within society despite his schizophrenia.

A visited C’s home
A had a schizophrenic fit, set fire to himself with petrol, died and C was injured
C claimed negligence and sought damages against the A’s insurers (D) for ‘accidental’ bodily injury

Question 9

Roe v Minister of Health [1954] 2 QB 66

breach of duty - timing

Denning LJ: Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here. Dr. Graham sought to escape the danger of infection by disinfecting the ampoule. In escaping that known danger he unfortunately ran into another danger. He did not know that there could be un-detectable cracks, but it was not negligent for him not to know it at that time.

We must not look at the 1947 accident with 1954 spectacles.’

Answer 9

D did not breach the duty of care.
= judges gauge danger with the current perception. The doctors did know at the undetectable cracks in the viable. Must be judged with regard to the known facts be at the time of the act.

In 1947, an anaesthetist administered anaesthetic to C from a glass ampoule submerged in phenol
The phenol had entered the ampoule from an invisible crack
As a result of exposure to the phenol, C became paralysed

Question 10

Royal Opera House Covent Garden Foundation v Goldscheider [2019] EWCA Civ 711

breach of duty - utility of conduct (statutory)

[44] ‘Whether or not [the 2006 Act] alters the common law as laid down by the House of Lords in Tomlinson v Congleton BC … we do not consider that it assists the [Opera House]. It might have done if the evidence had demonstrated that nothing more could have been done to reduce noise without the ROH having to abandon the Wagner repertoire entirely. But we are a long way from that in the present case.’

Answer 10

Sir Brian Leveson ruled that ‘It emphasises that the risk of injury through noise is not removed if the noise - in the form of music - is the deliberate and desired objective rather than an unwanted by-product, as would be the case in relation to pneumatic machinery. The national and international reputation of the RoH is not and should not be affected by this judgment’.

It was also shown that the Opera House had since moved the order of the orchestra pit around, repositioning the brass section thus significantly reducing the noise level and subsequent risk of noise damage. This was seen to be an action that they could easily have taken prior to Mr. Goldscheider’s injury and was seen as a direct link between the injury and the cause and an action that the Opera House should have taken.

Facts: the violas were next to the brass section, and he experienced at the end of rehearsal noise damage to his hear (he had to give up professional playing the viola)

Question 11

Ashton v The City of Liverpool Young Men’s Christian Association [2023] EWHC

utility of ocnduct - breach of duty

[171] Question ‘whether the worthwhile activity of the YMCA in providing a service for vulnerable individuals should be curtailed by the imposition of an onerous duty, applying the Compensation Act 2006, and the Social Action Responsibility and Heroism Act 2015.

In my judgment there is a simple and straightforward answer to this.’

= even though there is no doubt that the YMCA is a valuable service, the only thing to do was to put lock on the windows.

‘The duty said to be breached is no more than one which requires the integrity and safety of the units to be preserved … I cannot see any basis for saying that extending their responsibilities to defeat the actions of vulnerable residents who want their windows open amounts to a curtailing of their worthwhile activities. These particular statutory provisions are far more apposite to activities which involve an inherent element of risk, but one which is balanced by the very significant benefit gained, such as school field trips, forest activities, and the provision of sporting experiences for those without privileges.’

Answer 11

No liability ultmately. The court also dismissed the defendant’s submission under the Compensation Act 2006 that to impose a breach of duty here would curtail the worthwhile actions of the YMCA. In the court’s view, given the relatively easy low cost solution, the submission could not be sustaine

C had been drinking and spotted hanging in the edge of a window and then fell and suffered injuries. She argued that she had fallen because there was no lock restriction on the window.

The YMCA knew that it was the case.

Question 12

Bolton v Stone [1951] AC 850

probability of harm

Wider considerations of the case:

• Boltonis therefore one of the most important cases on the breach element of negligence as it clarifies what risks the reasonable man should take account of: likely or probable risks.
• For Lord Reid (at 867) the likelihood of harm is not the only factor to be taken into account when determining whether the defendant breached their duty of care. The seriousness of the consequences is also relevant. This was confirmed inParis v Stepney BC[1951] AC 367
• InBolton, Lord Reid said (at 867): ‘I do not think that it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all.’ Yet inMorris v West Hartlepool Steam Navigation Co. Ltd[1956] AC 552, 574 he appeared to repudiate this view and said that ‘the difficulty and expense and any other disadvantage of taking the precaution’ must be considered when determining how the reasonable man would behave. Indeed, InTomlinson v Congleton BC[2003] UKHL 47, the House of Lords confirmed that in determining what counts as reasonable behaviour, the following factors should be balanced against each other: risk of injury, gravity of injury, cost of taking precautions, and the utility or social value of the activity

Answer 12

• Miss Stone lost her case in the House of Lords. The defendants had not breached their duty of care and it was held that the claimant could not succeed on the nuisance ground if the negligence one failed.
• The House of Lords confirmed that reasonable foreseeability of damage was necessary for a defendant to have breached their duty of care. However, this was not sufficient. While the standard of care in negligence was that of the ‘ordinarily careful’ or reasonable person, an ordinarily careful person ‘does not take precautions against every foreseeable risk’ (at 863 per Lord Oaksey)

> ‘The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken’ (at 858 per Lord Porter).

• it was foreseeable that an accident like Miss Stone’s could happen, as balls had occasionally been driven onto the road before. However, the likelihood of injury was minimal because balls rarely went out and the area of the road where they might fall was generally sparsely populated. Given this low risk, a reasonable person would not take precautions against it
• Lord Radcliffe: the law of negligence is concerned less with what is fair than with what is culpable

Facts: The claimant, Miss Stone, had been standing on the street outside of her house when she was injured by a cricket ball that had been hit by a player on an adjacent cricket ground. The cricket field was surrounded by a seven foot high fence but a slope meant that the top of the fence was 17 feet above the cricket pitch. Although balls had previously been hit over the fence, it was rare for this to happen (approximately six balls had been hit over the fence in 28 years). Miss Stone brought a claim in negligence and nuisance against the committee and members of the cricket club.

Question 13

The Wagon Mound (No 2) [1967] 1 AC 617

breach of duty - probability of harm

> ‘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. A reasonable man would only neglect such a 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 … [What Bolton v Stone] did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.’ (Lord Reid)

Answer 13

Held:

• D breached duty of care.
• A reasonable person in the position of D’s chief engineer would have been aware of the risk of the oil alighting.
• Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it ⇒ It was unreasonable to neglect the risk as action to eliminate it presented “no difficulty, involved no disadvantage, and required no expense”:

Facts: The defendant’s vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve. Ds failed to remove the spillage. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some other vessels.
The trial judge had held that the damage was not reasonably foreseeable as the risk of the oil alighting on water was remote.

Question 14

Paris v Stepney [1951] AC 367

breach of duty - gravity of harm

‘If … the duty is that owed to the individual and not to a class, it seems to me to follow that the known circumstance that a particular workman is likely to suffer a graver injury than his fellows from the happening of a given event is one which must be taken into consideration in assessing the nature of the employer’s obligation to that workman.’ (Lord MacDermott)

Answer 14

Appeal allowed
D fell below the standard of care of a reasonable employer, which would provide goggles to an employee with one eye.

Paris (V), who had only one good eye, was employed by Stepney Borough Council (D) at a garage without being provided goggles
While working, he struck something and a piece of metal injured his good eye
V sued D for damages in respect of the injury on the basis that D was negligent in not providing work goggles
It was found that a reasonable and prudent employer would not provide two-eyed men goggles in such circumstances
The Court of Appeal said V’s disability could not be considered when determining the standard of care, dismissing the claim
V appealed to the House of Lords

Question 15

Latimer v AEC Ltd [1953] AC 643

Cost of precautions - duty of care

‘The problem is perfectly simple. The only question was: Has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work?’ (Lord Tucker)

Answer 15

Decision
The House of Lords held in favour of the defendant. They were not in breach of their duty to the claimant, as they were not required to take excessive measures such as shutting down the factory. The defendant had done all they could reasonably do.

This Case is Authority For…
The cost of taking precautions against the risk of harm is relevant when determining whether the defendant has breached their duty of care.

The claimant was a workman at the defendant’s factory. An unusually severe storm flooded the factory floor. This caused an chemical contained in channels in the floor to leak out. When the water levels went down, the chemicals covered the floor, making it highly slippery. To deal with this, the defendant ordered that the factory’s supplies of sawdust be laid on the floor. However, there was not enough sawdust to cover the whole area. The claimant slipped while working in an untreated area and was injured.

The claimant sued the defendant in negligence. The defendant argued that they should not be liable, because the only way they could have made the factory safer was by shutting it down entirel

Question 16

Woolridge v Sumner [1963] 2 QB 43

context (sport)

68 ‘It cannot be suggested that the participant, at any rate if he has some modicum of skill, is, by the mere act of participating, in breach of his duty of care to a spectator who is present for the very purpose of watching him do so. If, therefore, in the course of the game or competition, at a moment when he really has not time to think, a participant by mistake takes a wrong measure, he is not, in my view, to be held guilty of any negligence.

Furthermore, the duty which he owes is a duty of care, not a duty of skill.

Answer 16

Held: no duty. The duty is of care not of skill.
NB: On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient.

The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti non fit injuria.

Question 17

Blake v Galloway [2004] 1 WLR 2844,

context (horseplay)

Dyson LJ: [14] ‘The offending blow was caused by a piece of bark which was thrown in accordance with the tacit understandings or conventions of the game in which the claimant participated. It was thrown in the general direction of the claimant, with no intention of causing harm, and in the same high-spirited good nature as all the other objects had been thrown.’

Answer 17

The Court of Appeal held in favour of the defendant. There was no breach of duty, and consent barred any battery claim.

This Case is Authority For…
A duty is owed in situations of rough play. In horseplay situations, the activity will usually be conducted without much expectation of care between the parties. In those situations, an act will only amount to a breach if it is reckless, highly careless, or if the defendant departs from the tacit understanding of how the game will proceed. Mere errors of judgement are insufficient.

Participants in sports or other contact-based games can be taken to consent to any contact they could reasonably expect to happen in that game or sport.

The parties were teenagers who were playing a game. The game involved throwing wood chippings at each other. The claimant was struck in the eye by a chipping thrown by the defendant. He sued the defendant in negligence and battery.

Question 18

Czernuszka v King [2023] EWHC 380 (KB),

context (contact sports)

Martin Spencer J: [1] ‘Unfortunately, injuries sustained in the course of games of rugby, and other sports such as association football, are not uncommon, these being contact sports played at speed where players can differ in height, stature and weight. In general, injuries, even serious injuries, are an accepted risk of the sport and do not sound in damages. However, sport is not exempt from, or immune to, the law of negligence. … the courts have deemed actionable injuries sustained where the conduct of the opposing player fell below the standard of care appropriate and to be expected in all the circumstances.’

Answer 18

HELD: there was liability
NB: There are fouls (outside of the rules) that are still within what is expected. Some go well beyond what is expected in the game and that can amount to failure to take reasonable care.

Facts: entry-level rugby players and some (D) had more experience. The defendant was the largest player. The C was a very good player. Suggestion that D said that he was going to go for the C in tackles. C suffered a spinal injury and became paralysed. D fell on top of her and was not a legitimate tackle in rugby.

Question 19

Cavanagh v Ulster Weaving Co Ltd [1960] AC 145

professional standards

Answer 19

Held: On the evidence, the jury was entitled to find the defendants guilty of negligence, since the evidence as to trade practice alone could not be treated as conclusive in favour of the defendants.

> 161 ‘it was for the jury to assess the value to be attached to such sketchy evidence as this, given without any explanation as to what was covered by the words “set-up.” They may well have considered it insufficient, more especially if they attached importance to the use of wet rubber boots on a ladder of this kind.’

⇒ even if evidence is provided, still for the courts to determine what was the standard of reasonable care.

> “put in its simplest terms the general scope of the duty of an employer is a duty to take reasonable care in all circumstance ⇒ Lord Somervelle of Harrow

= expert evidence of general or usual trade practices is insufficient in itself to prove absence of negligence of employer’s duties.

Facts: A servant descending a ladder in the course of his employment slipped and fell and was injured because he was wearing rubber boots supplied by the employer which were too big and which, to the employer’s knowledge, were bound to be wet. Unchallenged expert evidence had been given that “this set up” was in accord with good practice

Question 20

Bolam v Friern Hospital Management Committee [1957] 1 WLR 58

professional standards - medical professions

McNair J

587 ‘He 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… Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.’

Answer 20

The High Court held in favour of the defendants. The doctors were not in breach of their duty because a responsible body of medical professionals agreed with their practice.

This Case is Authority For…
A medical professional has not breached their duty of care if they acted in accordance with ‘a practice accepted as proper by a responsible body of medical men’ skilled in the relevant area. This is true even if another body of medical opinion would adopt a different course of action.

The claimant was a voluntary patient at the defendant’s mental health hospital who was injured during electro-convulsive therapy. He sued the defendant in negligence, arguing that the doctors had breached their duty of care by not giving him muscle relaxants or manually restraining him. Expert evidence showed that most doctors opposed the use of chemical relaxants. A small portion of competent doctors were also against the use of manual restraints as they thought it heightened the risk of injury.

Issue(s)
What standard of care is owed by doctors in negligence when treating their patients?

Question 21

Bolitho v City and Hackney HA [1998] AC 23

professional satndards - medical professions - Bolam test caveat

Other comments:
D cannot argue that their breach of duty did not cause the harm because they would also have committed some other breach. So, if failure to intubate had been negligent, the defendant could not have claimed that their failure to attend did not cause the child’s death because they would have negligently allowed the child to die even if they had attended. However, on the facts, it was not negligent to fail to intubate the child

Answer 21

The House of Lords held in favour of the defendant. There was no reason to challenge the expert evidence indicating that not intubating the child was reasonable. As such, even though the defendant was in breach by failing to attend to the child, that breach did not cause death: the child would have died in any event.

This Case is Authority For…
When applying the Bolam test, the court must be satisfied that the expert body of professional opinion the defendant is relying on has a logical and defensible basis for approving of the defendant’s practice..

‘if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.’ (Lord Browne-Wilkinson).

= it is still a question of judgement to assess the supposed body of responsible medical men and if it does not withstand logical analysis => may still be a breach

=> Legal standard informed by professional practice

The claimant was the estate of a child who suffered respiratory failure and was taken to the hospital. The doctor did not to attend to him. The respiratory failure developed into cardiac arrest. The child suffered brain damage and ultimately died. The claimant argued that this could have been avoided if the child had been intubated.

The doctor argued that even if she had attended to the child, she would not have intubated him. This meant that the child would have died in any event. The defendant (the doctor’s employer) presented expert evidence that other doctors might have done the same. The claimant presented counter-evidence from an expert who considered not intubating to be negligent.

Question 22

FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334:

professional standards - medical professions - experience

[63] ‘The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent [Senior House Officer] in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” … does not diminish the required standard of skill and care.

On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.’

Answer 22

Appeal allowed. The ruling judges referred to the requirement that in a professional context, a claimant is entitled to expect adherence to certain standards and level of care of a reasonably competent member of the profession. The SHO believed, mistakenly, that information would be volunteered in such cases that something frightening witnessed by a parent would have been given and did not require specific questioning. The leading judgement ruled that questioning was not assumed to be only a remit of a senior doctor. However, the physical examination may have required more experience to recognise the subtle signs the child presented with. The judgement found, inevitably, that the lack of history taking was substandard to that expected from a competent SHO. Thus the appeal was allowed.

The claimant was a child taken to hospital and examined by a junior doctor, key symptoms were missed. The action failed at first instance because the judge found that it was not negligent for this doctor to fail to elicit a fall.

Question 23

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871

professional standards - medical professions - disclosure of risks

In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the UK Supreme Court has overturned the decision, stating that Bolam test is not applicable on risk disclosure to patient, and that the doctor should not only disclose sufficient information regarding the risk to the patient, they should also consider the risk from patient’s situation.

Answer 23

Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.

The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation.

Question 24

Montgomery v Lanarkshire Health Board [2015] UKSC 11

professional standards - medical professions - disclosure of risks

Obiter dicta:

• Patients can refuse to be informed about the risks of injury in the proposed treatment and a defendant will not be liable for respecting these wishes (at [85]).
• There is also a ‘therapeutic exception’ that means a doctor will not be liable for failing to inform a patient of the risks involved in treatment if doing so would be seriously detrimental to the patient’s health. However, Lords Kerr and Reed warned (at [91]) that it was a limited exception that should not be abused.
• Finally, a doctor is also ‘excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision’ (at [88]).

wider considerations:

• Montgomeryconfirms thatSidawayis no longer good law. The test for breach of duty in cases for negligent advice is now different from the test in cases of careless diagnosis and treatment: theBolamtest has no place in the former whereas it remains good law in the latter.
• The judgment of the Supreme Court emphasizes the importance of respecting patient autonomy. This involves giving patients enough information and engaging in a dialogue with them so that they can make an informed decision about what treatment, if any, is best for them.

Answer 24

Appeal Alllowed.
* The test of materiality is whether, in the circumstances of the particular case, ‘a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’ (at [87]).

Reasoning:
A doctor’s duty of care in negligence includes diagnosis, advice, and treatment. If a patient is not warned of the risks of a procedure, leading to injury the patient would have avoided if warned, the doctor may be liable.

In Sidaway [1985], the House of Lords applied the Bolam test, allowing doctors to avoid liability if a responsible body of medical opinion supported their decision not to disclose risks. However, the Supreme Court in Montgomery rejected this approach, emphasizing a shift away from medical paternalism. Lords Kerr and Reed highlighted that the doctor-patient relationship has evolved, requiring doctors to take reasonable care to inform patients of material risks, fostering informed decision-making.

Nadine Montgomery, was a pregnant, diabetic woman of small stature. Women with diabetes are more likely to have large babies and there is a 9–10 per cent risk of shoulder dystocia (the baby’s shoulders being too wide to pass through the mother’s pelvis) during vaginal delivery. Shoulder dystocia can normally be resolved with an emergency procedure but there is a small risk that it can have very serious consequences for the mother and child. Mrs Montgomery had raised concerns about vaginal delivery with a doctor employed by the defendants. The doctor failed to advise her about the risk of shoulder dystocia as the risk of adverse consequences was small and, if diabetic women were warned of the risk, they would opt for a caesarean section rather than a vaginal birth, which the doctor believed was not in most patients’ interests. During the delivery, shoulder dystocia occurred and Mrs Montgomery’s baby was deprived of oxygen. As a result, he was born with severe disabilities. She brought an action in negligence on behalf of her son alleging that she should have been warned of the risks involved in a vaginal birth.

Question 25

Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307,

professional standards - medical professions - disclosure of risks

Hamblen LJ:

43 ‘The judge is finding that in 2008 there was insufficient understanding among gynaecologists of the existence of a risk of “chronic pain, or of neuropathic (or nerve) pain, whether that was long term or short term” to justify the imposition of a duty to warn of such a risk. That reasoning is consistent with the Montgomery approach – a clinician is not required to warn of a risk of which he cannot reasonably be taken to be aware.’

= unknown risks do not need to be disclosed.

Answer 25

The claimant’s action was dismissed.
The Court of Appeal held that the trial judge did not fail to apply the Montgomery test which provides that doctors have a duty of care to warn patients of any material risks of treatment which the patient would regard as significant or which the doctor, knowing the particular patient, ought to regard as likely to be significant.

It noted that a doctor’s role when considering possible investigatory or treatment options is an exercise of professional skill and judgements so, determining what risks are known or should have been known in relation to particular operations are matters of judgement for the medical profession and not the courts. Since CPSP, etc. were not known risks of Ms Duce’s operation in 2008, there was no duty to warn her of them.

Ms Duce made a claim against the respondent for damages relating to an operation performed at Worcester Royal Hospital on 25th March 2008 which aimed to relieve her of persistent period pain. Unfortunately, Ms Duce sustained nerve damage and now suffers from Chronic Post-Surgical Pain (“CPSP”). Ms Duce did not argue that the operation was performed negligently. Her case was that she had not been adequately warned of the risk of CPSP, chronic pain or neuropathic pain as a result of the operation.

Following a 4-day trial at Birmingham County Court, the judge dismissed Ms Duce’s claim. He held that there was no duty to warn of the risk of CPSP, neuropathic or chronic pain because, at the time of the operation, these risks were not associated with that particular procedure by the medical profession. In any case, the evidence showed that Ms Duce had been sufficiently warned that the operation would cause her some pain which could last 3-6 months. Also, even if she was warned of CPSP, etc., she would have likely gone through with the operation anyway.

Question 26

McCulloch and others v Forth Valley Health Board [2023] UKSC 26

professional standards - medical professions - dislclosure of risks

1. Correct legal test for assessing whether an alternative treatment was reasonable and required to be discussed with the patient -The correct legal test was the professional practice test. There was therefore no error of law made by the lower courts,Hunter v HanleyandBolamapplied
2. Consistency with Montgomery -InMontgomery, a distinction was drawn between the exercise of professional skill and judgment, and the court-imposed duty of care to inform. The determination of what were reasonable alternative treatments was clearly an exercise of professional skill and judgment. The approach favoured by the present court was an application, not a rejection, of what was said inMontgomeryand in no sense diminished the force of the doctor’s duty of care to inform which was authoritatively recognised for the first time in that case.
3. Consistency withDuce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, [2018] P.I.Q.R. P18, [2018] 6 WLUK 96- The two-stage test identified inDuce(namely, what risks associated with an operation were or should have been known to the doctor, and whether the patient should have been told about such risks by reference to whether they were material), was based on the distinction drawn inMontgomerybetween when the doctor’s role was, and was not, a matter of professional skill and judgment. The identification of which treatments were reasonable alternatives (i.e. clinically appropriate) was as much a matter falling within medical expertise and professional judgment, and hence governed by the professional practice test, as the identification of risks associated with any treatment. It would be inappropriate to apply the professional practice test to determining possible alternative treatments and a court-imposed standard to determining reasonable alternative treatments. Once it had been decided what were the reasonable alternative treatments, by applying the professional practice test, the doctor was then under a duty of care to inform the patient of those reasonable alternative treatments and of their material risks.

Answer 26

Held: The Supreme Court unanimously dismisses the appeal.

Facts: Mr Neil McCulloch died on 7 April 2012 at Forth Valley Royal Hospital, having suffered a cardiac arrest at home. The appellants are Mr McCulloch’s widow and other relatives. They claim that his death was caused by the negligence of Dr Catherine Labinjoh, a consultant cardiologist employed by the respondent, the Forth Valley Health Board. Among other things, the appellants allege that, in line with the duty in Montgomery, Dr Labinjoh was required to discuss the option of using non-steroidal anti-inflammatory drugs with Mr McCulloch. The Lord Ordinary and the Inner House held that Dr Labinjoh was not negligent in failing to inform Mr McCulloch about the possible treatment by NSAIDs. The widow and family members of Mr McCulloch appealed to the Supreme Court.

issue: What test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable and that opinion was supported by a responsible body of medical opinion?

Question 27

Barker v Baxendale Walker Solicitors [2017] EWCA Civ 2056, Asplin LJ:

duty to disclose riks in other professions? - professional standards

Issue:
Did the solicitors breach their duty of care by not warning the client about the significant risk of the EBT scheme being challenged?

Answer 27

The Court of Appeal held that:

The solicitors owed a duty to warn the client about material risks inherent in the advice they provided, particularly given the aggressive nature of the tax scheme.
The failure to specifically highlight the risk of HMRC’s contrary interpretation constituted a breach of that duty, as this risk was material to the transaction and central to the retainer.
The Bolam test, typically used to assess professional negligence, does not absolve solicitors in such cases where the focus is on providing clear warnings about legislative risks.

The Court of Appeal considered whether solicitors breached their duty of care by failing to warn a client of significant risks associated with an aggressive tax avoidance scheme.

Key Facts:
The client instructed the solicitors to mitigate capital gains tax (CGT) on the sale of his company.
The solicitors advised implementing an employee benefit trust (EBT) scheme, which purportedly allowed CGT-free share transfers to trustees and subsequent benefits for family members.
Crucially, the solicitors failed to warn of the significant risk that HMRC might adopt a contrary interpretation of section 28(4) of the Inheritance Tax Act 1984, which required family members to remain excluded persons for the scheme to succeed.
HMRC later deemed the scheme invalid, resulting in a substantial tax liability.

Question 28

Baker v Quantum Clothing Group Ltd [2011] UKSC 17,

professional standard - industry standard

The issues before the Supreme Court were whether the judge had been correct to:

(i) treat M differently to average employers;

(ii) find that Q and M had been entitled to rely on the code and had not breached their common law duty;

(iii) find that Q and M had not breached their statutory duty

Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards.

Answer 28

Held: appeal allowed

• on the common law duty of care (the other parts are not really relevant): The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.

Facts: B had been employed by Q and M in the decades before the Regulations came into force. Q were average-sized employers and M were larger. B had allegedly been subjected to noise levels at work between 85 and 90dB. The Government issued a code of practice in 1972 stating that 90dB(A)lepd was not to be exceeded. In 1983 a Directive had been proposed which would require employers to provide ear protection for workers exposed to noise levels above 85dB(A)lepd. That was enacted asDirective 86/188and was implemented by the Regulations in 1990. B were given ear protection in the late 1980s. B alleged that the noise levels had induced noise-related hearing loss.B successful in the court of appeal.

Question 29

Scott v London & St Katherine Docks (1865) 3 Hurl. & C. 596 at 601:

res ipsa loquitur

‘There must be reasonable evidence of negligence. But where the thing is [shown] to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care’

Answer 29

Decision
The Court of Exchequer overturned the judge’s ruling and remitted the case for trial. The jury should have been allowed to consider whether there was negligence.

This Case is Authority For…
Where an accident happens which would not ordinarily occur without negligence, and the defendant was in control of or managing the environment in which it happened, this is prima facie evidence that negligence has happened. In those circumstances, the defendant needs to show an alternative explanation for how the accident happened without negligence.

The claimant was a customs officer who was injured when six bags of sugar fell from a crane on top of him at the defendant’s docks. It was not clear exactly why the sugar fell. At trial, the judge held that the claimant had failed to establish negligence and directed the jury to find for the defendant.

Issue(s)
Should the jury be allowed to consider whether the defendant had been negligent?

Question 30

George v Eagle Air Services Ltd [2009] UKPC 21, Lord Mance:

res ipsa loquitur

Reasoning
- The maxim of res ipsa loquitur was deemed important, especially where the Warsaw Convention is not thought to apply, due to the difficulty in proving aviation negligence. Although previously resisted in aviation cases, it was increasingly applied, as crashes are uncommon and suggest some operational fault. E offered no explanation for the crash, failing to counter the presumption of negligence, which supported G’s claim.
- E’s argument that W was a joyrider was rejected. W must have been on the aircraft with the pilot’s consent, likely for operational reasons. Even if he were a joyrider, E still owed him a duty of care as it would to any passenger.

Answer 30

At 1st instance: The judge found that in the absence of the report there was no evidence of negligence, and W’s claim failed. G appealed, raising amongst other things, res ipsa loquitur. **

Held: appeal allowed.

Facts: W was a mechanic working for EAS. He was killed when one of EAS’s aircraft crashed. G (W’s wife) claimed that W was travelling on the aircraft in the course of his employment and that his death was caused by the pilot’s negligence. E alleged that the aircraft had been serviced by W and was airworthy for the flight, that W had been on the aircraft outside the scope of his employment, and that it had never authorised the pilot to mishandle the aircraft. Otherwise, the defence simply denied the allegations of negligence and advanced no positive explanation of the crash.

Question 31

Watt v Hertfordshire County Council

utility of the conduct

Answer 31

Held:

There was no breach of duty. The emergency of the situation and utility of the defendant’s conduct in saving a life outweighed the need to take precautions

The claimant was a fireman. A woman had been involved in a traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station. The fire services were called to release the woman. They needed to transport a heavy lorry jack to the scene of the accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack was not available. The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck. There was no means for securing the jack on the truck and the firemen were instructed to hold it on the short journey. In the event the truck braked and the jack fell onto the claimant’s leg causing severe injuries.

.