Tort of Negligence: Breach of Duty of Care Flashcards
Preliminary points
- The starting point of this section is that a DOC has already been established
- Fault = breach = negligence
- Two concepts of liability
a) Fault liability – if liability is premised on fault, it means that D fails to live up to a standard of reasonable care which he should have taken in relation to C
b) Strict liability – as long as D has caused harm, D will be liable, regardless whether he has lived up to the standard of reasonable care
JYL and Cane on fault
- JYL: The Nettleship cases should be distinguished from the Stokes cases. There is a mix of strict and fault liability, but this is because the courts don’t want to admit the policy considerations for adopting each. So we must always distil the policy concerns. What C expects from an industry is different from a dog-walker! The reasonable person test is just a tool for court discretion. Perhaps the test should be reformulated to become ‘what can C reasonably expect from D?’ instead!
- Cane (Atiyah’s Accidents): The fault principle has traditionally been understood as a principle of morality, which can justify not only the imposition of liability for death and personal injury but also the assessment of compensation according to the full compensation and hundred-per cent principles. Grosser fault may even be seen as justifying the award of exemplary or punitive damages. Arguments against the fault principle:
The compensation payable bears no relation to the degree of fault
There is no such idea that the compensation payable should be proportional to the tortfeasor’s fault. Fault is like a magic talisman; once it is established, all shall be given to the injured party. A piece of momentary thoughtlessness on the road may cost someone their life and cause great loss to their family; but similar acts of thoughtlessness may be committed by scores of others every day with only minor or even no adverse consequences.
But in other cases courts often appear to assume that the reasonable person never makes a mistake. On the road, for instance, almost any driving error is apt to be treated as negligence without argument, despite the evidence that the typical driver commits driving errors every few minutes
The compensation payable bears no relation to the degree of fault
More V-focused
Tort law’s lack of concern with the relationship between culpability and liability for consequences is a reflection of the fact that tort law is much more concerned with victims than is criminal law. As between a tortfeasor and a totally innocent victim, it is only fair that the harm suffered be borne by the former rather than being shared between them. Since the tortfeasor may be no more culpable than many others, and may only have done what others are constantly doing, it may seem inequitable that the few whose negligence results in injury or loss to others should be required to bear this burden while the majority of negligent people go free
7.2 The compensation bears no relation to the means of the tortfeasor
The fact that a tortfeasor is rich is no ground for imposing liability, and the fact that they are poor is no ground for not imposing liability. Most people would probably accept as morally right this principle of equality before the law regardless of wealth, which is implicit in the fault principle. A parent might feel morally obliged to pay a neighbour a few pounds for a window broken by their child; but it is doubtful whether parents would feel morally obliged to sell up house and home and impoverish themselves and their family if the child were to blind a neighbour’s child with an airgun and were held liable for damages of tens or hundreds of thousands of pounds.
No criminal court would think of imposing a fine for culpable conduct of the amounts that civil courts award as damages every day, without serious inquiry into the ability of the defendant to pay.
But it hardly seems fair or socially desirable to strip a person of everything because of what may have been a venial act of negligence. It is exactly for this reason that the law allows liability insurance, and without it the tort system could not operate effectively as a compensation mechanism. However, liability insurance conflicts with the rationale of the fault principle in that it relieves the faulty person of the burden of paying damages.
A harm-doer may be held legally liable without being morally culpable and vice versa
If tort law was based on fault would it not prohibit liability insurance, vicarious liability and other loss distribution devices by which the burden of paying compensation can be shifted from a party at fault to another party not at fault?
Collective liability
When it is argued that a company, or a local authority or some other organization or group was at fault, the moral content of the allegation may seem rather more attenuated.
But the main aim of a negligence action is to compensate injured persons; and so long as we are satisfied that appropriate precautions ought to have been taken within the organization to prevent the harm, there is no good reason not to impose liability to pay compensation on the organization, even though there is an obvious sense in which the (moral) fault must have lain with individuals within the organization rather than the organization as such. For this reason, to say that tort law sometimes imposes liability in the absence of fault is not a criticism but only an observation.
The objective definition of fault
Question: if the law really reflected morality, it would not adopt an objective definition of fault which, on the whole, ignores the personal qualities of the persons involved and which does not require that the harm-doer should have had any consciousness of moral wrongdoing, or even of the risk they were creating or of the dangerousness of their conduct (see Nettleship v Weston; Wilsher v HA; Bolam).
A reason often given for this approach is that the injury inflicted is the same whether the injurer could or could not personally have avoided the accident. Holmes: If for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbours, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbours than if they sprang from guilty neglect. His neighbours accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.
The objective definition of fault
Criticism of Holmes
This is a weak argument because it does not go far enough: the damage or injury is the same whether or not there has been fault at all, even as objectively defined by the law. Tort law is victim-based: it is hard to see why it does not also follow that an injured person should be compensated whether or not there is fault at all, whether objectively or subjectively judged.
The objective definition of fault
Alternative argument
A different approach would be to argue that the law’s objective definition of fault is not actually out of line with morality at all. If an adult behaves badly as a result of stupidity or forgetfulness or bad judgment, we would not necessarily hold that person morally blameless!
Yet, considering the fact that the court does take into account disability and age, it would appear, therefore, that a dichotomy between objective legal fault and subjective moral fault is too simple. The gap between law and morality is not as great as might at first appear. Yet, if we consider cases such as Nettleship v Weston, there are some areas in which the gulf seems quite wide! But even if the law is out of step with morality, it does not follow that this is a bad thing! If we think that the main purpose of the law is to compensate injured persons, there is no reason why moral fault should be the criterion of liability to pay compensation.
7.5 Justice may require payment of compensation without fault
See Vincent v Lake Erie Transportation (US ship docking case). The court said in Vincent, even though we might not morally blame a person who chooses to save their own property at the expense of risk to someone else’s property, we might nevertheless think the former ought to pay for the privilege thereby enjoyed. ZCT: this can be compared to the government’s appropriation of land. Compensation still ought to be paid even if appropriation is not reprehensible. Cane (unjust enrichment): we may be able to say, as in Vincent, that the injurer has ‘gained’, or furthered their own ends, by taking a risk at the expense of the injured person. Similarly, in Bolton v Stone, the club benefited by not having to spend money on a higher fence, but at the cost of a risk of injury to the claimant and others.
7.6 It is often difficult to adjudicate allegations of fault
There are three distinguishable problems. The first arises out of the nature of the legal test of fault; the second out of problems of proof; and the third from concentrating too much on one specific cause to the exclusion of statistical and other evidence about accidents of the kind in question.
1) The essence of the legal concept of fault is unreasonable failure to take precautions. This concept is both abstract and fact dependent.
2) Adjudication on the fault issue requires witnesses to be able accurately to recall what occurred in that fraction of a second if we are to have any confidence that the findings of fact made by a court correspond with what actually happened
3) Concerning the third problem, it may be true, despite the above difficulties, that if we concentrate exclusively on the behaviour of the principal parties involved in an accident, we can, in a reasonable proportion of cases, arrive at a workable conclusion on fault and causation. However, this exercise may often be misleading because it omits to take account of factors that would not always, or indeed often, be thought to be responsible for accidents. Now such things as the width of a street, its curvature or gradient, the quality of its surface, the flow of traffic and its speed, all influence the probability of an accident in a street. When individual accidents are studied and ‘causes’ sought it is not, in general, these factors that will be cited. (Rebuttal: ZCT: how do you know they are not cited in court?)
Consider also the case of the motorist who tries to reduce speed on approaching a roundabout, skids and crashes into a bollard in the centre of the road. If this case ever came into court the motorist would almost certainly be found entirely responsible for causing the accident by negligence. Yet this sort of accident is so common at some roundabouts that it has been found cheaper to treat the road with a non-skid surface than to replace the bollards every time they are damaged. If this is not done, who is more at fault, the motorist or the highway authority?
Normativity and description: A motorist fails to see, or understand the meaning of a road sign, and an accident ensues. Who is to blame? Obviously the motorist. But is it still so obvious when we know that many motorists, even when under observation and consciously trying to be at their most attentive, still fail to observe some road signs? Or when we know that only a small fraction of motorists know what some signs mean? ZCT: so the reasonableness enquiry will say that the motorist is at fault for failing to see it. The descriptive test will say that he is not really at fault because almost nobody can see it. Yet these two need not be separate. What is reasonable may well hinge on what reasonable motorists can see!
A child, playing ball with another child in the street, is run over and killed. Whose fault is it? Plainly the child’s own fault. But when we know that children who come from poor homes and have nowhere to play are more likely to be involved in road accidents than other children, are we still so confident of our conclusion? Do we not begin to think that the organization of society may have some responsibility in the matter?
Cane’s defence: the fact that many accidents and diseases are not the result of the fault of any identifiable individual does not mean that the victims of such accidents and diseases do not deserve compensation; and the fact that many accidents and diseases are not, in any meaningful sense, anyone’s fault but are the result of perfectly legitimate choices between conflicting goals, does not mean that the victims of such accidents and diseases do not deserve compensation… the central point we have been making is that the fault principle leads us to seize on a limited number of relatively obvious accident causing factors, and to blame the party responsible for these as having been ‘negligent’.
The reasonable person test
• Liability in negligence is premised on fault. The basic test is the reasonable person test. The test is objective.
The reasonable person test
Blyth v Birmingham Waterworks Co (1856)
ϖ Alderson B: 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’
Commentary: This is the reasonable person test: D has to satisfy this test for the purposes of breach. Whether D was at fault is a question of fact to be decided by the trial court (of little precedential value) but the courts have fleshed out legal requirements by which D’s behaviour was assessed. The legal guidance are about the 1) reasonable person test and the characteristics of the reasonable person 2) what a reasonable person will take into account. Butis fault/reasonable person test a descriptive test (what normal people usually and actually do) or is it a normative test (i.e. what reasonable people ought to do?). It seems that the test is a normative test, but the distinction is blurred. The normative test brings in a community standard but this is more appropriate for the US where decisions are made by the jury. The test is OBJECTIVE: however, certain characteristics of D may be relevant.
The reasonable person test
Not to be affected by hindsight
• The test what could reasonably have been expected from Dought NOT to be affected by hindsight or by subsequent developments in technological skill or scientific knowledge. Transient considerations, such as the agony of the moment, may however be taken
The reasonable person test
Roe v Minister of Health [1954]
ϖ C had been administered a spinal anaesthetic consisting of Nupercaine for minor operations. The Nupercaine was stored in glass ampoules which were, prior use, emerged in the phenol sterilising solution and had been contaminated during storage by the phenol as transpired the ampoules had minute cracks which were invisible and not detectable with human eye. This resulted in both Cs becoming permanently paralysed. At the time it was not known by competent anaesthetists in general that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way. CA Held: Lord Denning: failure to foresee this was not negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. D did not know that there could be undetectable 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! C have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Chilling effect argument: Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. Rule: .The reasonable person test is not looked at with the benefit of hindsight. A reasonable person could not have known about such risks!
The reasonable person test
Judged in context
D’s behaviour must be judged in context for the purposes of the reasonable man test. Transient considerations, such as the agony of the moment, may however be taken..
ϖ horseman (in a competition) galloped his horse round a corner. A cameraman, C, was standing about 25 yards from it although he had been told to go outside the competition area while the horses are galloping. When the horse approached him, C stepped back and was knocked down and injured. C sued the horse owner. Held: a reasonable spectator knows that a reasonable participant will concentrate his attention on winning and will have to exercise his judgment in the agony of the moment if the game is a fast-moving one. This must be considered in questioning whether any mistake he makes amounts to a breach of duty. Also, a man owes no duty to his neighbour to exercise any special kill beyond reasonability – this is the difference between DOC and duty of skill. The horsemen hear was an exceptionally skilful horseman. Lord Diplock: A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that any such act may involve an error of judgment or lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.Commentary:
The reasonable person test
Olephant commentary on contextual approach to judging reasonable standard
so an error of judgment or lapse of skill was not sufficient for the purposes of negligence here, something in the nature of a reckless disregard of C’s safety had to be proved. Does it mean that it displaced the ordinary standard of care in relation to contact sports or that some latitude must be allowed in such an activity? There is probably no difference which approach was preferred (Condon v Basi). This brings out the question of whether no-fault liability is desirable.
The reasonable person test
The normative system which regulate the activity in question MUST be considered. But sometimes the courts have gone beyond the requirements in common practice. This requires D to keep reasonably abreast of developing knowledge, and take additional precautionary measures where he has specialist knowledge.
Stokes v GKN [1968
ϖ industrial case: C died of scrotum cancer caused by exposure to mineral oil (putting dirty and oil rags into the pocket). D did nothing, and argued that the common practice in the industry was NOT to warn employers. Held: D was still in breach. The medical literature was the developing knowledge. D had specialist knowledge because someone died of this before and the inquest required medical examination to be performed on D’s employees.Swanwick J: the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know –
I) where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad;
II) where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it;
III) Where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions
Commentary: industrial common practice/customs are relevant, but NOT decisive. Here the court again relied on external standards to determine the internal tort standard.
The reasonable person test
Thompson v Smith Shiprepairers [1984]
ϖ 6 C suffered deafness due to noise in shipyards. D (shipyard owners) were complying with standard industrial practices - ‘inescapable shipyard life’. D was no more amiss than everyone else in the industry. Held: despite that, D was STILL in breach! D could only rely on the common industrial practice if there was a lack of social awareness to protect employees generally against industrial noise. Once information, such as the government guidance in this case, and ear protection devices are available on the market, D would come under a DOC because they should have sought that knowledge or should have taken the precaution to protect their employees against deafness. The information had been available by 1963 and so 1963 marked the dividing line between a reasonable policy following common industrial practice and a failure to take reasonable steps to prevent deafness. Hence, D was in breach after 1963!
The reasonable person test
Thompson v Smith Shiprepairers [1984]
Mustill J
The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. This principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ‘ploughing a lone furrow’.
Rule: The publication of government guidance was a crucial dividing line, it was where D would start to act to protect C’s hearing.
Commentary: there is so much uncertainty in these cases since external standards (beyond common practice) are relevant to the reasonable person determination. The courts always insist on taking the decision themselves.
The reasonable person test
Baker v Quantum Clothing Group [2011]
ϖ C worked in knitting factories and all lost their hearing and sued D. The issue was about the level of protection of C. The 1972 Code of Practice held that the protection action had to be taken if the noise was above 90 dB. Under the 1989 Regs (EU Directive 1986) it was 85 dB. C was exposed to noise between 85 dB and 90dB. D argued that they were complying with the 1972 Code of Practice. Held: (approving Stokes and Thompson)employers could rely upon a recognised and established practice to exonerate themselves from liability in negligence for failing to take further steps to avoid injury to their employees unless that practice was clearly bad or, in the light of developing knowledge about the risks involved in some location or operation, they had acquired greater than average knowledge of the risks. The 1972 Code of Practice provided clear guidance acting as both a relevant and appropriate guide to acceptable practice upon which a reasonable employer could legitimately rely in conducting his business until the late 1980s. The date for all employers when the Code of Practice became no longer the acceptable standard was when the terms of the 1986 directive became generally known in the consultative document of 1988.Dyson LJ: until the late 1980s the Code of Practice set the standard for the reasonable and prudent employer without specialist knowledge… but there is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence’
The reasonable person test
Budden v BP Oil [1980]
ϖ (availability of statutory defence) the child (C) argued that they suffered physical harm due to the presence of excessive lead and sued D (manufacturers of leaded petrol). There were secondary legislations for the permissible amount of lead in petrol and D complied with it at all times. CA Held: case struck out. The courts could NOT set a limit different from that set under the legislation, as this would violate the constitution. The appropriate standard required of the Defendants was for Parliament, by the Minister, to lay down, and not for the Courts to assess as reasonable or unreasonable in the light of the evidence in any case. Yet, there is no unanswerable statutory defence. A reasonable person here would look at the statutory standards and think that it is the reasonable standard. Yet, this is dependent on the facts. Commentary: Lee: If the speed limit is 30 mph and D drove at 29mph, D might still have breached his duty depending on the road conditions. A reasonable person might reasonably depart from the statutory standards!! Rule: statutory guidance is extremely relevant, but not a magical and conclusive (unanswerable) defence!
The reasonable person test
special approach for professionals.
• Where there is divided opinion within a profession as to the appropriate course of action in a particular situation then D is not to be treated as in breach of duty by following a practicelogically and defensibly accepted as proper by a responsible, reasonable, respectable and experienced body of medical men skilled in that particular art.
The reasonable person test
special approach for professionals
Bolam v Friern HMC [1957]
ϖ C was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs to restrict C’s violent movement and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. The experts have different opinion. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. C argued that the doctor was in breach of duty by not using the relaxant drug. HL: D was NOT in breach of duty. With a situation that involves some special skill or competence, the test is NOTthe test of the man on the top of a Clapham omnibus (i.e. an ordinarily skilled man with no special skill). The test is the standard of the ordinarily skilled man exercising and professing to have that special skill. Bolam test: Putting it the other way round, a doctor 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. Nevertheless, he cannot 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. D 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
The reasonable person test
special approach for professionals.
Commentary on Bolam
Montrose: is negligence an ethical or a sociological concept? Oliphant: it is clear in Maynard that the actual preference of the judge is wholly irrelevant regarding which body of medical opinion to take. This also applies to the amount of information that has to be given to patients as to the risks involved in a proposed course of treatment (Sidaway). Bolam was applied in other professional contexts such as Phelps v Hillingdon as well! Lord Scarman: the law imposes a DOC, but the DOC is a matter of medical judgment! Keown: it is disturbing when the courts have used the test to allow doctors to determine other matters beyond their competence (e.g. the extent of the patient’s right to information)
