Negligence - Breach of Duty

Question 1

What is the significance of the concept of breach of duty of care?

Answer 1

Breach of duty is underpinned by the need to protect the threshold for a reasonable standard of care established by the duty of care tests previously discussed (Caparo etc).

Question 2

What is the importance of imposing only a reasonable standard of care upon individuals?

Answer 2

It was said in the case of Cole v Davies-Gilbert that - ‘If the law were to set a higher standard of care than that which is reasonable … the consequences would quickly become inhibited. There would be no fêtes, no maypole dancing and none of the activities that have come to be associated with the English village green for fear of what might conceivably go wrong.’

Question 3

What is the key issue underpinning the breach of duty concept?

Answer 3

The issue is whether D’s conduct measured up to the required standard. The court addresses this issue in two-steps.

Question 4

What are the two steps the courts consider when determining whether D’s conduct meets the required threshold?

Answer 4

1. How the defendant ought to have behaved in the circumstances – what was the required standard of care in these circumstances? This is often described as a matter of law.
2. The behaviour of the defendant – did they (actually - as a matter of fact) fall below the standard of care required?

Question 5

What is the basic test to determine whether a breach of duty has occurred?

Answer 5

The basic test is on of reasonableness.

Question 6

What reinforced the test of reasonableness as the basic test for breach of duty?

Answer 6

The words of Alderson B in Blyth v Birmingham Waterworks, here he said - ‘Negligence is the omission to do something which the 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’

Question 7

Who is the reasonable man?

Answer 7

1. ‘The man on the Clapham omnibus’ - Lord Bowen, Hall v Brooklands Auto-Racing Club
2. A ‘traveller on the London underground’ - Lord Steyn, McFarlane v Tayside Health Board
3. ‘The anthropomorphic conception of justice’ - Lord Radcliffe, Davis Contractors v Fareham Urban District Council

Question 8

What is the importance of the concept of the ‘reasonable man’ in establishing a breach of duty?

Answer 8

If D is to be legally liable for the injury to C, they must have fallen short of the conduct expected of the reasonable man. Thus, the tort of negligence accords primacy to the ‘fault principle’ – it must be D’s fault (however ‘fault’ here should not be understood in terms of subjective or moral fault).

Question 9

Which case illustrated the application of an objective test of reasonableness?

Answer 9

Nettleship v Weston

Question 10

What were the details of the Nettleship Case?

Answer 10

C agreed to give D (a family friend) driving lessons. The car mounted the pavement and hit a lamp post, breaking C’s knee cap. D was later convicted of driving without due care and attention. C sued in negligence.

Question 11

What was the finding of the Nettleship Case and how did it illustrate an objective test of reasonableness?

Answer 11

Applying an objective test of reasonableness, the majority of the Court of Appeal held that the duty of care owed to C was the same objective and impersonal standard that was owed by all drivers, including learners, to all road users. Thus, D was able to recover from C.

Question 12

Are there any modifications or exceptions to the objective test of reasonableness that underpins breach of duty?

Answer 12

Yes, the courts do, sometimes, modify the general rule that the standard of care is objective to take into account certain characteristics of some defendants.

Question 13

What are the two key instances in which the objective test of reasonableness may be deviated from?

Answer 13

1. Children - Where the defendant is a child

2. Common Practice - Where the defendant professes to have a special skill or competence

Question 14

How does the standard of care required of children vary from the objective test of reasonableness?

Answer 14

It was laid down in Gough v Throne that the standard of care is ‘whether any ordinary child of 13½ [for example] can be expected to have done any more than this child did. I say ‘any ordinary child’. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13½’

Question 15

Which case illustrates the practical application of the test of reasonableness for children laid down in Gough v Thorne?

Answer 15

Mullins v Richards

Question 16

What are the details of this case?

Answer 16

Two fifteen-year-old school girls were having a mock sword fight using plastic rulers while sitting at their desks in class. This was a popular game at their school. Unfortunately, one of the rulers snapped and a fragment of plastic entered C’s eye, causing her to lose all useful sight in it.

Question 17

What was the finding of the case of Mullins v Richards, and how did it illustrate application of the alternative test laid down in Gough v Thorne?

Answer 17

The Court of Appeal held that the correct standard of care was not whether an ordinarily prudent and reasonable adult in the position of the defendant would have realised that their actions created a risk of injury but whether this would be apparent to the ordinarily prudent and reasonable fifteen-year-old schoolgirl. On the evidence the defendant had not fallen below this standard.

Question 18

How does the standard of care required from a person professing to have a special skill or competence deviate from the objective test of reasonableness?

Answer 18

Where a person professes to have a special skill or competence, the law requires that when dealing with people in the context of a calling or profession they do so with an appropriate level of competence.

Question 19

What exemplifies or clarifies the position in regards to a different standard of care for persons professing to have special skills?

Answer 19

Rogers, Winfield and Jolowicz said on the matter - ‘Nobody expects the passenger on the Clapham omnibus to have any skill as a surgeon, a lawyer, a pilot, or a plumber, unless he is one; but if he professes to be one, then the law requires him to show such a skill as any ordinary member of the profession or calling to which he belongs, or claims to belong, would display’

Question 20

Which case illustrates the application of the different standard of care required of persons professing to posses particular skills?

Answer 20

Bolam v Friern Hospital Management Committee

Question 21

What were the details of this case?

Answer 21

A patient was given electro-convulsive therapy without being given a relaxant drug and without the appropriate physical restraints. In the course of the treatment C sustained a fractured hip.

Question 22

What was the finding of the Bolam Case and how did it illustrate the application of the different standard of care?

Answer 22

It was held that D was not in breach of their duty as they had not fallen below the standard of care expected of a person professing to have the relevant skills.

Question 23

What are the two modifications to the Bolam Principle?

Answer 23

1. Rank/Status v Post

2. Common practice must be logical and reasonable

Question 24

What is the rank/status modification to the Bolam Principle?

Answer 24

Where D is occupying a particular post, their conduct will be assessed according to the standard reasonably expected of someone occupying such a post. The law makes no allowances for inexperience or for the fact that everyone must, to a certain extent, gain practical experience ‘on the job’.

Question 25

Which case illustrates the rank/status modification of the Bolam Principle?

Answer 25

Wilsher v Essex Area Health Authority

Question 26

What were the details of the Wilsher Case?

Answer 26

1. C had been cared for in the special care baby unit of a hospital, after being born prematurely.
2. On two separate occasions, he was given too much oxygen and so developed a condition known as retrolental fibroplasia (RLF) – an incurable eye condition affecting the retina.
3. He was eventually left him blind in one eye and with seriously impaired vision in the other.

Question 27

What was the finding of the Wilsher Case and how does it illustrate the modification to the Bolam Principle?

Answer 27

C’s claim failed (on causation issues). However, it was established that the junior doctor was in breach of their duty of care in monitoring his blood - ‘the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service’.

Question 28

Which case illustrates the logical and reasonable (requirement of common practice) modification to the Bolam Principle?

Answer 28

Bolitho v City and Hackney Health Authority

Question 29

What are the details of the Bolitho Case?

Answer 29

A small boy was taken to hospital with croup. When in hospital there were complications and, sadly, the boy died. It was accepted that if he had been intubated this would probably have saved him.

Question 30

What was the finding of the Bolitho Case and how did this illustrate the logical and reasonable modification to the Bolam Principle?

Answer 30

It was held that the D was not liable because he had acted in a reasonable and logical fashion.

Question 31

How does the Bolitho Case serve to further qualify the position set out by the Bolam Case?

Answer 31

Following Bolam, a doctor will not have fallen below the standard of care expected of a reasonable doctor, if they have acted in accordance with a respectable body of the medical profession (even if it is a minority viewpoint). However, this is qualified by … Bolitho v City and Hackney Health Authority. It is now the case that ‘doctor knows best’ only ‘if he [sic] acts reasonably and logically and gets his facts right’.

Question 32

What impact does the qualification imposed by Bolitho upon Bolam have on the understanding of the latter test?

Answer 32

What this means is that the Bolam test is now better understood as a two-stage test:

1. Has the doctor acted in accordance to a practice as accepted as proper by a respectable body of medical opinion?
2. If yes, is the practice itself ‘reasonable’ and ‘logical’.

Question 33

What factors will the courts take into account when seeking to define the standard of care required of a D (what they ‘ought’ to have done or what was reasonable in the circumstances)?

Answer 33

1. Probability or risk of the injury
2. The seriousness of the injury
3. The cost of taking precautions
4. The social value of the activity.

Question 34

Which case illustrates the courts consideration of the probability of risk of injury when determining the standard of care required?

Answer 34

Bolton v Stone

Question 35

What are the details of the Bolton v Stone Case?

Answer 35

C was hit on the head outside her house by a cricket ball hit by a player from an adjacent cricket pitch. The hit was substantial, although possibly not exceptional. The ball had travelled some 100 yards (approx 91m) and over a seven-foot fence (which, due to the slope of the pitch, was in effect seventeen-feet high).

Question 36

What was the finding of the case and does it illustrate consideration of the probability of harm occurring in deciding the required standard of care?

Answer 36

It was held that the C could not make a successful claim as, given the circumstances of the case, the D had taken reasonable care given the degree of risk in the instant situation.

Question 37

How was the position of the courts in considering the probability of harm occurring in determining the appropriate standard of care further supported?

Answer 37

Lord Oaksey said on the issue - ‘The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk … He takes precautions against risks which are reasonably likely to happen’

Question 38

What more directly applicable comments to the case of Bolton v Stone did Lord Oaksey make?

Answer 38

He said - ‘there are many footpaths and highways adjacent to cricket grounds and golf courses on to which cricket and golf balls are occasionally driven, but such risks are habitually treated both by the owners and committees of such cricket and golf courses and by the pedestrians who use the adjacent footpaths and highways as negligible and it is not, in my opinion, actionable negligence not to take precautions to avoid such risks’

Question 39

Which case further supported the line of reasoning presented by Lord Oaksey?

Answer 39

Roe v Ministry of Health

Question 40

What are the details of the Roe v Ministry of Health Case?

Answer 40

C’s were paralysed from the waist down after being injected with a contaminated nupercaine (a spinal anaesthetic) during a routine, minor operation. The nupercaine had been contained in sealed glass ampoules and stored in a solution of phenol prior to use. Unknown to the hospital, the phenol had percolated into the ampoules through invisible cracks or molecular flaws, later causing the C’s paralysis.

Question 41

What was the finding of the Roe v Ministry of Health Case and how did this support Lord Oaksey’s position?

Answer 41

The C’s claims failed on the grounds that the probability of the injury they eventually suffered was no negligible it could not have been said for it to have been reasonable for the D to take (any/further) precautionary action against it. (Analogous Case to Bolton v Stone).

Question 42

Which case illustrates the courts consideration of the potential seriousness of injury in determining the required standard of care?

Answer 42

Paris v Stepney Borough Council

Question 43

What are the details of the Paris Case?

Answer 43

A man, employed as a garage hand, suffered serious injury when a metal chip flew into one of his eyes while he was working. Unfortunately, he was already (as his employers knew) blind in his other eye. The injury, therefore, left him effectively blind. He sued his employers, claiming they were negligent in failing to provide safety goggles and to require their use as part of a safe system of work.

Question 44

What was the finding of the Paris Case and how did it illustrate the consideration of the potential seriousness of injury when determining the required standard of care?

Answer 44

It was held that the D had been negligent, this was based, in part, on the fact that the potential seriousness of injury for the specific claimant (given he was already blind in one eye) was higher - thus the D should be held to a higher standard of care, they had failed to meet this required standard.

Question 45

Which case illustrated the consideration of the cost of precautions when determining the required/appropriate standard of care?

Answer 45

Latimer v AEC Ltd

Question 46

What were the details of the Latimer Case?

Answer 46

Heavy rainfall flooded the defendant’s factory. The rain water mixed with oily liquid, which usually collected in channels in the floor. This meant that when the mixture was drained away the floor became very slippery. D put down sawdust to remedy this. Although there was insufficient sawdust to cover the entire floor, the majority of the floor was covered. C slipped on part of the untreated floor and broke his ankle.

Question 47

What was the finding of the Latimer Case and how did it illustrate consideration of the cost of precautions when determining the required standard of care?

Answer 47

It was held that the D was not liable, partially because the cost of covering the entire factory floor with sawdust made it unreasonable to hold the D to that required standard of care.

Question 48

Which three case illustrate the consideration of the social value of an activity when determining the appropriate/required standard of care?

Answer 48

1. Watt v Hertfordshire County Council
2. Scout Association v Barnes
3. Marshall v Osmond

Question 49

What were the details of Watt Case?

Answer 49

A fireman was seriously injured by lifting-gear while travelling in the back of a lorry on the way to an accident where a woman was trapped under a heavy vehicle. The lorry had not been specially fitted to carry the gear in an emergency.

Question 50

What was the finding of the Watt Case and how did it illustrate consideration of the social value of the activity when determining the required standard of care?

Answer 50

The C’s claim failed, partially because of the social value of the activity occurring (fire-fighting) when he was injured.

Question 51

What were the details of the Scout Association Case?

Answer 51

C was injured while playing a game called ‘Objects in the Dark’ which involved running around a pile of wooden blocks in a scout hall and attempting to grab a block once the lights were switched off.

Question 52

What was the finding of the Scout Association Case and how did it illustrate consideration of the social value of the activity when deciding the required standard of care?

Answer 52

It was held that the defendant had breached its duty – the value of playing the game in the dark as a way of adding ‘spice’ to increase the boys’ enjoyment of the game did not justify the additional risk.

Question 53

What did LJ Smith say in support of the finding in the Scout Association Case?

Answer 53

He said - ‘the particular justification for playing this game in the dark was only that it added excitement … it … significantly increase[d] the risk of injury … the added excitement of playing the game in the dark, which might well encourage boys to attend scouts — a desirable objective – did not justify the increased foreseeable risk’.

Question 54

What were the details of the Marshall v Osmond Case?

Answer 54

D was a police officer who had been following (in an unmarked car) a vehicle he believed had been stolen in the early hours of the morning. The pursuit ended when the car pulled over into a lay-by and the occupants of the car dispersed (presumably intending to make their escape into the open country). The officer, intending to draw up alongside the car, skidded slightly as he braked, causing damage to both cars and seriously injured C, who had got out of the car and hidden beneath it.

Question 55

What was the finding of the Marshall v Osmond Case and how did it illustrate consideration of the social value of the activity when determining the required standard of care?

Answer 55

It was held that C’s claim failed. Although the police officer owed the same duty of care to a suspected criminal as he would to anyone else, he had not fallen below the standard of care as was reasonable in the circumstances of the case, given (in part) the nature of the activity he was performing - social value of policing.

Question 56

Which two pieces of legislation have also made provisions potentially affecting the courts reasoning/determination of a reasonable standard of care to be required?

Answer 56

1. Compensation Act 2006

2. Social Action, Responsibility and Heroism Act 2015

Question 57

What was the purpose of the adoption of each of these two pieces of legislation?

Answer 57

1. The Compensation Act 2006 was enacted to address the perception of a growing compensation culture in the UK
2. The SARaHA 2005 was enacted to address the growing deterrent effect of potential liability

Question 58

What was Section 1 of the Compensation Act 2006?

Answer 58

S 1 - Deterrent Effect of potential liability

Question 59

What was the the contents of Section 1 of the Compensation Act 2006?

Answer 59

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care, have regard to two specific further considerations.

Question 60

What are the two specific considerations the court may give regard to when determining the required standard of care under Section 1 of the Compensation Act 2006?

Answer 60

A court may have regard to whether a requirement to take those steps might—

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.

Question 61

What is the broader significance of the Compensation Act 2006 in regards to the courts approach to determining the required standard of care?

Answer 61

This merely reflects the existing law and has not altered the way courts approach the issue of determining the standard of care.

Question 62

What was the contents of the SARAH in regards to establishing a required standard of care?

Answer 62

Under the SARAH 2015, when a court is ‘determining the steps that the person was required to take to meet a standard of care’, it must have regard to;

(a) whether the person was acting for the benefit of society or any of its members (s.2)
(b) whether the person in carrying out the activity giving rise to the claim ‘demonstrated a predominantly responsible approach’ (s.3)
(c) whether the person ‘was acting heroically by intervening in an emergency to assist an individual in danger’ (s.4).

Question 63

Overall, what does the contents of SARAH say the courts must have regard to when determining the required standard of care?

Answer 63

1. Social Action
2. Responsibility
3. Heroism

Question 64

What can be taken from each of the three key sections of the SARAH previously referred to?

Answer 64

1. s.2 - vague - reflects social utility.
2. s.3 - non sequitur - the standard of care and whether the defendant has actually breached that standard are two separate stages of the determination of the issue of breach.
3. s.4 - in an emergency the court will likely demand less of defendant.

Question 65

What is the balancing act the courts must complete when determining the required standard of care?

Answer 65

In each case the courts weigh up the likelihood of injury and the seriousness of harm against the cost of taking precautions and the social value of the activity before coming to a decision as to what was reasonable in all the circumstances of the case – what the reasonable man would have done.

Question 66

What further illustrates this balancing act on the part of the courts?

Answer 66

The Learned Hand Test;
B < LP = a reasonable person would take precautions = defendant liable if they do not take precautions
B > LP = a reasonable person would not take precautions = defendant not liable if they do not take precautions.

Question 67

Which case illustrates the balancing act of the courts when determining the required standard of care?

Answer 67

Overseas Tankship (UK) Ltd v The Miller Steamship Co, The Wagon Mound (No.2)

Question 68

What were the details of The Wagon Mound (No. 2) Case?

Answer 68

1. Ds were transferring furnace oil from a nearby wharf onto a vessel, the Wagon Mound.
2. Due to carelessness on the part of the engineer, a large quantity of the oil spilled into the harbour.
3. The owners of the wharf were carrying out repairs on the C’s ships which caused pieces of hot metal to fly off and into the wharf.
4. The metal fell onto some object supporting a piece of inflammable material in the oil-covered water, which ignited.
5. This caused the oil to catch alight and the ensuing fire quickly destroyed the wharf and C’s vessels.

Question 69

What was the finding in the Wagon Mound (No. 2) Case and how does it demonstrate the courts engagement in a balancing act?

Answer 69

It was held that although the chance of the oil catching fire was very low it was nevertheless a real one and, given the very grave consequences should the risk materialise, there was no justification for their failure to take steps to eliminate it. Moreover, it was easy for Cs to prevent the spillage. On this basis, the Ds had fallen below the standard of care required – the reasonable man would have taken precautions.

Question 70

What are the two key questions to be asked when trying to establish a breach of a duty of care?

Answer 70

1. How the defendant ought to have behaved in the circumstances – what was the required standard of care in these circumstances?
2. The behaviour of the defendant – did they fall below the standard of care required?

Question 71

What is the position regarding the provision of evidence of negligence?

Answer 71

Erle CJ said, in the case of Scott v London and St Katherine Docks Co, ‘There must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant … and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation of the defendant, that the accident arose from want of care’

Question 72

What are the two pre-requisites for the application of the doctrine placing a presumption of a breach of duty of care upon the defendant?

Answer 72

1. The thing which caused the accident needs to be ‘under the management of the defendant, or his servants’, that is, the defendant needs to have control of the thing that caused the injury.
2. The accident must be such as ‘in the ordinary course of things, does not happen if those who have the management of the [things] use proper care’.