4. Negligence - Breach OF THE DUTY PDF

Preview

Summary

NEGLIGENCE – BREACH OF DUTY Reading:1) INTRODUCTORY POINTS/CONTEXT  Investigating a breach of duty is a two-step analysis: (a) set the standard of care; and - Be clear about what the yardstick/parameters with which the defendant is being examined. (b) assess whether there was a breach of that stan...

Description

NEGLIGENCE – BREACH OF DUTY 

Reading:

1) INTRODUCTORY POINTS/CONTEXT  Investigating a breach of duty is a two-step analysis: (a) set the standard of care; and - Be clear about what the yardstick/parameters with which the defendant is being examined. (b) assess whether there was a breach of that standard.  Questions of law, and questions of fact – Goldman v Hargrave [1967] 1 AC 645, at 663: ‘[T]he standard of care is a question of law, but whether or not, in any given case, that standard has been attained is a question of fact for the judge to decide having regard to all the circumstances of the case’. FACTS: The defendant’s huge gum tree was struck by lightning and as a consequence of that a fire occurred. The defendant could have put the fire out and had the means to do it, but instead he chose to let it burn out naturally. As a result of this the fire spread to a neighbor’s adjoining property and caused extensive damage. - In terms of breach, was the defendant liable for not acting and allowing the fire to spread? Yes! The defendant knew of the danger and the damage that occurred was a foreseeable consequence and the defendant had the means and ability to abate this consequence occurring but chose not to. - The standard of care was a question of law, but whether it was foreseeable and satisfactory was a matter of fact with regard to the circumstance.  Remember where this fits within the overall negligence scenario - Even if a duty of care exists and is established there will not be a successful cause of action in negligence overall until the element of breach is satisfied. - Breach is a necessary element in the overall cause of action in negligence.  Breach – a very practical question - Even if a DoC has been established, we are looking at whether the defendant has lived up to the legal standard expected of them. So, this involves looking at a lot of practical issues. - Q: “does the defendant have a particular standard to live up to and marked against and have they breached this standard that is expected of them?”  Be clear about the scope of the duty of care, before determining breach – - e.g. Montgomery v Lanarkshire Health Board [2015] UKSC 11 (noted on the general negligence lecture outline, and also arising in seminar one, relating to the scope of one of the doctor’s duties of care, the duty to warn) - Question in this case was “whether a doctor’s DoC includes a duty to warm the patient”, and here it was more the ‘scope’ of the duty. - Whether in the circumstances, a “reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor should be reasonably aware that the particular patient would be likely to attach significance to it.”



Reluctance of appellate courts to interfere with trial findings of fact – - e.g. Robinson v CC West Yorkshire Police [2018] UKSC 4 - This case clarified the use of a Caparo test for a duty of care. - FACTS: the case was concerned with the liability of an innocent bystander/ third party who was injured in the course of police investigation. This occurred in a very busy street, in the center of Huddersfield town. A 78-year-old woman was injured when two police officers attempted the arrest of a suspect and in the course of this, and the suspect collided with the old lady (claimant). - The investigation was carried out at trial of a detailed review of sequence of events at the incident. Here’s what was assessed: A police officer had made an initial assessment that he would not be able to catch the suspect so he called for support. The suspect had moved and was standing outside a shop, and some other officers arrived. They then decided that suspect had to be arrested at that exact moment so they made a careful decision that two officers would approach from one side and in a few moments another two will arrive from the other side. - When this case went on appeal to SC, they noted there had been a serious and dynamic risk assessment that had been carried out by the officers at the time. More importantly, the SC supported the trial judges’ approach of undertaking a detailed analysis of this arrest operation. - HELD: The trial judge had found that there was no duty, BUT if there had been a duty it would’ve been breached. The SC then decided that there had been a DoC and then the question of breach simply followed, and accepted the facts at the trial stage.

2) SETTING THE STANDARD OF CARE  The general standard – “reasonableness” is the key - “reasonable care”, “ordinary care”, “proper care”: Lord Radcliffe in Bolton v Stone [1951] AC 850 - FACTS: (check YouTube video) - This case also demonstrates that English law does not require perfection. - The standard of care in English is generally objective.  Whether/how to take into account any particular idiosyncrasies of the defendant/situation – - Generally objective - Glasgow Corporation v Muir [1943] AC 448, at 457, per Lord Macmillan: … it ‘eliminate[s] the personal equation… independent of the idiosyncrasies of the particular person whose conduct is in question’ - But - personal idiosyncrasies of the defendant may be relevant, e.g.:  Specialism - A person practicing a particular skill/art/expertise is required to show “the ordinary skill of an ordinary competent man exercising that particular art” – per Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, at 586 (Mc Nair J) - Some professions may have graduated specialisms, e.g. Medicine: 1) Holt v Edge (2007) – GP service

FACTS: The appellant had a fall in her shower and hurt her head. Her husband then telephoned a doctor’s practice who recommended that he contacts the out of hours GP practice. That evening an emergency doctor visited the lady and diagnosed that she had a minor neck injury. She was advised to see her GP the next morning and the GP confirmed this diagnosis. However, 2 days later the lady was still experiencing pain, and went to the hospital. They then diagnosed that she had a far more serious problem, a type of hemorrhage. As a result of this she had a stroke. The GP admitted a breach of duty by failing to ensure that she consulted a second doctor, but he denied liability for what happened next. HELD: The GP was not liable for failing to diagnose the hemorrhage as the symptoms weren’t present yet. Here, the doctor had lived up to the standard expected of him – that of a GP. 2) Shakoor v Situ (2000)- Practitioner of alternative medicine FACTS: The claimant sought help for a skin problem from the defendant who was a qualified practitioner of traditional Chinese herbal medicine (not an orthodox medical practitioner). He prescribed a herbal remedy which caused the claimant to suffer serious side effects and ultimately died. The claimant’s widow sued for damages. HELD: The claim was not successful and it was held that defendant was to be held at a standard of a reasonable Chinese alternative medicine practitioner. 3) Phillips v Whiteley Ltd [1938] - Those who offer medical-type services FACTS: The plaintiff went to defendant to get her ears pierced, and an abscess developed on her ear after it was pierced. The jeweler did seem to take adequate precautions to keep the wound from getting infected and also cleaned his tools. The method to clean his instruments, he used a burning flame (different from how a surgeon would). HELD: But It was held that the jeweler could not be held to the standard of a surgeon and his specialism had a different benchmark for precaution and cleaning. So as a jeweler, he had actually taken all reasonable steps a jeweler would. 4) Darnley v Croydon Health Services Trust [2018]- A hospital receptionist HELD: The receptionist owed a DoC, because the receptionist at A&E had to take additional care not to provide wrong information. The standard of care required was that of a reasonable person in the receptionist status in a place that provides emergency medical care!  Inexperience - Inexperience does not suppress the standard of care – a defendant is held to the standard of the reasonably competent and experienced defendant engaged in that activity - Nettleship v Weston [1971] 2 QB 691 FACTS: The defendant, Mrs. Weston was a learner driver. She was taking lessons from her friend, Mr. Nettleship. Weston was turning around a bend and Nettleship told her to straighten the wheel. In panic, she didn’t do so, and was

speeding towards the footpath. In an attempt to avoid this Nettleship took the wheel to try straighten it, but it was too late and the car mounted the footbath and hit a lamppost. Nettleship severely injured his knee and sued Weston. Mrs. Weston argued that the standard of care should be lowered for learner drivers. HELD: A learner a driver is expected to meet the same standard as a reasonably qualified competent driver. Lord denning added, “The learner driver may be doing his best but his incompetent best is not enough. He must drive in a good manner as a driver of skill, experience and care.” - Note the caveat to Nettleship: Mansfield v Weetabix Ltd [1998] 1 WLR 1263 FACTS: A lorry driver had a previously unknown condition – hypoglycemia. He suffered from an attack due to this which affected his brain and suffered from extremely low blood sugar, causing him to drift in and out of consciousness in his truck. He lost control and caused a major accident. HELD: He was not liable, because his standard of care was that of a reasonably competent driver. His medical condition was unknown, and could not be predicted. - This principle also applies in the professional context: Wilsher v Essex Area Health Authority [1987] QB 730 FACTS: A premature baby was given too much oxygen by a junior doctor and the baby suffered from a condition which affected his retina making him blind in one eye and partially sighted in other. The condition could have been caused by the excess oxygen given by the junior doctor, OR could’ve been caused by four other unrelated factors to do with his premature birth. HELD: The junior doctor was in breach of duty. The junior doctor owes the same standard of DoC as a fully qualified and experienced doctor. (case failed in causation – discussed later). - recent example, principle also emphasized in: (recent CA authority) FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334  Age - Young children - Mullin v Richards [1998] 1 WLR 1304 - Orchard v Lee [2009] EWCA Civ 295  Dangerous sports/activities - Injuries to spectators: ‘reckless disregard of safety’ test: - Wooldridge v Sumner [1963] 2 QB 43 - Blake v Galloway [2004] 1 WLR 2844 3) ASSESSING BREACH  The starting point – the initial test - Blyth v Birmingham Waterworks FACTS: Defendants (waterworks) installed water mains on the street where the plaintiff lived. One of the pipes leaked due to a severe frost in winter. The pipes were over 25 years old and as a result of this leak the plaintiffs house was flooded.

Plaintiff sued waterworks for negligence. Initially plaintiff was successful but this was reversed by CoA. HELD: Waterworks was not negligent as they followed the precautions reasonable people would’ve followed. The incident occurred due to a frost which has not been seen in years, so the waterworks could not have foreseen this. Unreasonable to have anticipated this happening. - per Alderson J: “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. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.”  Foreseeability of harm - Means a “real risk, and not just a mere possibility”:  Khan v Harrow Council & Kane [2013] EWHC 2687 FACTS: Claimants Mr. and Ms. khan purchased a house in Middlesex and defendant owned a neighboring property with trees. Claimants noticed damage to their prop few years after they moved in. Their insurers carried out investigations in which they identified a hedge on the defendant’s property to be a significant contributor to the damage. Court had to determine if the damage was reasonably foreseeable and if the neighbour acted reasonably to prevent the damage HELD: The risk was significant and no reasonably prudent landowner would have neglected it. The neighbor failed to take reasonable steps to minimize damage. Foreseeability of harm means a real risk and not just a possibility.  Overseas Tankship (UK) Ltd v The Miller Steamship Co, Wagon Mound (No 2) [1967] 1 AC 617 FACTS: Wagon Mount (defendants’ vessel) leaked furnace oil at a wharf in Sydney harbor due to a failure to close a valve. Some cotton debris got caught in the oil and some sparks from welding works ignited this. This caused the destruction of boats + wharf. HELD: Defendants were in breach of duty. Even though the likelihood of harm occurring was low the seriousness of the harm was high and it would’ve costed nothing to prevent it. - “Harm is reasonably foreseeable if it isn’t thought to be physically impossible or the possibility of it happening wouldn’t have been regarded as so fantastic and farfetched that no reasonable man would have paid any attention to impossible” - BUT- Does not follow that it is justifiable always to neglect a risk of small magnitude. Weigh the risk against the difficulty of eliminating it....