Breach PDF

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Discussed the objective test for establishing breach and the objective standard with case examples. Detailed the things to take into account when deciding if there was a breach with cases. Discussed bolam and bolitho and the professional standard....

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Tort Law – Lecture 7 Negligence: Breach of Duty When will D have breached a duty of care owed to C? Two parts: 1. How D ought to have behaved in the circumstances – what was the required standard of care in the circumstances? 2. How D did behave – did they fall below the standard of care required in the circumstances? Reasonable person – would they act in a particular way The Basic Test – an objective test Blyth v The Birmingham Waterworks Co (1856) 11 Ex 781,  Need to mention it but unlikely to rely on it  Maintenance of waterpipes – whether defendants had appropriately prepared the water pipes and protected them from bad weather  Water pipe burst  Had they fallen below standard of care required in the circumstances?  Couldn’t have predicted how cold it would be – therefore hadn’t fallen below a standard of care per Alderson B (p 1049):  ‘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’. Glasgow Corporation v Muir [1943] AC 448,  Gave more detail about what a reasonable man would or wouldn’t do this case showed the objective test  Carrying hot tea through café, there was a spillage of the tea and some children were injured  Reasonable person wouldn’t clear out the café of all children with the worry that there would be children injured per Lord Macmillan (p 457): 1) ‘The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person…’ 2) ‘It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation. Here there is room for diversity of view’. – for the courts to decide what the reasonable person would do in this situation The Objective Standard Nettleship v Weston [1971] 2 QB 691 Concerned learner driver – what is the standard for a learner driver  Went out a couple of times for a drive, third time driving the driver turned corner at walking pace, didn’t straighten up wheel, went onto curb and crashed into lamppost

Claimant (superior driver) – sued because he broke his kneecap – there is a duty of care from the driver  At first instance – she hadn’t breached her duty  High Court – held that she had infact breached her duty – standard should be the same regardless of whether you are a learner driver and if you have passed your test per Lord Denning (p 699):  ‘The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity’. 

The Objective Standard: Children Mullin v Richards [1998] 1 WLR 1304,  2 girls were pretending to sword fight with rulers – the rulers shattered and piece of ruler went into one of girls eyes  Her parents sued her friend  Courts said it was inappropriate to hold children to same standard as the reasonable person per Hutchison LJ (p 1308):  ‘… the fact that the first defendant was at the time a 15-year-old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave rise to a risk of injury, it is whether an ordinarily prudent and reasonable 15-year-old schoolgirl in the defendant’s situation would have realised as much.’ Orchard v Lee [2009] CA,  Whilst playing tag, couple of boys were running backwards and bumped into one of their teachers  The teacher sued the children for bumping into them  Standard they should be held to is that of a 13-year-old boy playing tag not that of the reasonable person at adult age  per Waller LJ (para 19):  ‘13-year-old boys will be 13-year-old boys who will play tag… If that is what they are doing, and they are not breaking any rules they should not be held liable in negligence.’ The Objective Standard: Disability and Illness Vaughn v Menlove (1837) 3 Bingham NC 468:  Defendants haystack set fire and damaged the house of the claimant  D argued that they were suffering from mental illness  Decided reasonable person principle still applied it didn’t matter about the mental illness  At first instance: ‘… if he had [acted bona fide to the best of his judgment], he ought not to be responsible for the misfortune of not possessing the highest order of intelligence’ (p 471).

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‘Instead, therefore, of saying that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe’ (per Tindal CJ, p 475). ‘The RPS here made its entry into negligence… it soon assumed the status of a doctrinal and theoretical orthodoxy’ (Mullender 2005, p 683).

Mansfield v Weetabix Ltd [1998] 1 WLR 1263,  Lorry driver employed by Weetabix  He was driving a lorry, crashed into vehicles including claimant  Defendant didn’t know he had lack of glucose going to his brain – passing out – crashes weren’t him acting a certain way  Courts decided standard of care expected of driver should be amended  If you can’t blame D, then the claim must fail per Leggatt LJ (p 1268):  ‘In my judgment, the standard of care that Mr. Tarleton was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of Mr. Tarleton’s condition would be to impose strict liability.’  Quoting Lord Wilberforce in Snelling v Whitehead: ‘if no blame can be imputed to the [driver], the action, based on negligence, must inevitably fail.’ Dunnage v Randall and another [2016] QB 639,  About individual who was unaware he was suffering from condition  Set himself on fire and died  Nephew brought claim on his estate as he had been injured when uncle set himself on fire  Court found he was to be held to reasonable person standard even though he was unaware of his illness – he had been negligent in the way he set himself on fire per Rafferty LJ (para 114):  ‘Unless a defendant can establish that his condition entirely eliminates responsibility – I avoid use of “fault” so as to emphasise my point – he remains vulnerable to liability if he does not meet the objective standard of care. It is the entirety of the elimination which drives this conclusion, and once that entirety is eroded or diminished, he is fixed with the standard. The evidence was that Vince’s responsibility came very close to complete elimination, but the experts stopped short of finding that it was complete.’ As Orchard (2016) observes: • The court in Dunnage articulates ‘a strict approach towards the liability in tort of persons suffering from mental illness’ (p 366). • ‘The court’s reasoning is clearly rooted in the stance that compensation for wrongful conduct, not fault, is the primary rationale for tort law’ (p 372). Further critique:

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For a feminist critique of ‘the reasonable man’, ‘the reasonable woman’ and ‘the reasonable person’, see, in particular, the works of Joanne Conaghan, Robyn Martin and Gary Schwartz.

Factors in Assessment: Timing Roe v Minister of Health [1954] 2 QB 66,  Concerns paraplegia suffered by 2 individuals who went into minor surgery, had been given anaesthetic  Didn’t know there were small cracks in the container, which have per Denning LJ (pp 83-84):  ‘If the anaesthetists had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection, they would no doubt have dyed the phenol a deep blue; and this would have exposed the contamination. But I do not think that their failure to foresee this was negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure… 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 undetectable cracks, but it was not negligent for him not to know it at the time. We must not look at the 1947 accident with 1954 spectacles.’ Factors in Assessment: Probability of Harm Bolton v Stone [1951] AC 850, per Lord Oaksey (p 863):  People playing cricket, hit cricket ball over fence, hit pedestrian on head  Not foreseeable that someone would be injured by the ball going over the fence Lord Oaksey  ‘… in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen…’ The Wagon Mound (No 2) [1967] 1 AC 617,  Ship, releasing oil into harbour water, mixed with water and set fire  Should have been foreseeable that this would happen Lord Reid  ‘…that does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent it. If it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellant is liable in damages.’ Factors in Assessment: Gravity of Harm Paris v Stepney Borough Council [1951] AC 367, per Lord Normand (p 383):  Individual who had one functioning eye was working in garage  Injured when metal chip flew up and injured good eye – blind  Decided he should have been given goggles Lord Normand

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‘… I think that his [Lynsey J] judgment is essentially a finding that the supply of goggles was obviously necessary when a one-eyed man was put to the kind of work to which the applicant was put. … Blindness is so great a calamity that even the loss of one of two good eyes is not comparable; and the risk of blindness from sparks of metal is greater for a one-eyed man than for a two-eyed man, for it is less likely that both eyes should be damaged than that one eye should, and the loss of one eye is not necessarily or even usually followed by blindness in the other.’

Factors in Assessment: Cost of Precautions Latimer v AEC Ltd [1953] AC 643  As a result of flooding there was damage and injury to those working  Employer had taken precautions to protect their employees, didn’t close shop as would be too costly to do this Lord Tucker  ‘The [trial] judge has found that they took every step which could reasonably have been taken to deal with the conditions which prevailed… but he has held the respondents liable because they did not close down the factory, or the part of the factory where the accident occurred, before the commencement of the night shift.  My Lords, I do not question that such a drastic step may be required on the part of a reasonably prudent employer if the peril to his employees is sufficiently grave, and to this extent it must always be a question of degree, but in my view there was no evidence in the present case which could justify a finding of negligence for failure on the part of the respondents to take this step.’ Factors in Assessment: Context Wooldridge v Sumner [1963] 2 QB 43, per Diplock LJ:  ‘The law of negligence has always recognised that the standard of care which a reasonable man will exercise depends upon the conditions under which the decision to avoid the act or omission relied upon as negligence has to be taken’ (p 67).  ‘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 such act may involve an error of judgment [sic] or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety’ (p 68).  ‘[A]n error or errors of judgment or a lapse of skill… is not enough to constitute a breach of the duty of reasonable care which a participant owes to a spectator’ (p 72). Blake v Galloway [2004] 1 WLR 2844, per Dyson LJ:  ‘I recognise that the participants in the horseplay owed each other a duty to take reasonable care not to cause injury’ (para 15).  ‘… in a case such as the present there is a breach of the duty of care owed by participant A to participant B only where A’s conduct amounts to recklessness or a very high degree of carelessness [or that it was caused deliberately]’ (para 16 (inserted text from para 25)).  ‘This was an unfortunate accident, and no more. There was no breach of the duty to take reasonable care’ (para 18).

Factors in Assessment: Utility of D’s conduct Watt v Hertfordshire County Council [1954] 1 WLR 835  Firefighters went out in vehicle wasn’t equipped to carry stuff they needed  Was it reasonable to expect that they would go and save them Denning LJ  ‘It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved… The saving of life or limb justifies taking considerable risk…’ (p 838). Singleton LJ  ‘Is it to be said that if an emergency call reaches a fire station the one in charge has to ponder on the matter… Would the reasonably careful head of the station have done anything other than that which the sub-officer did? I think not’ (p 837). Interim Conclusion  Establishing breach requires asking two questions: 1) what was the standard of care in the particular circumstances, and 2) did D’s behaviour fall below that standard?  It is an objective standard; that of ‘the reasonable man/person’. This standard is open to little adjustment (e.g. for age (children) and, in some limited circumstances, disability and illness).  In novel situations, when making an assessment the courts consider a series of factors. These include timing, probability of harm, gravity of harm, cost of precautions, context, and the utility of D’s conduct.  A thought to ponder (on a quiet Sunday evening): Is it correct to hold tightly onto this idea of an objective standard? Or does it lack cogency and risk possible injustice? Breach – Lecture 2 Question for today ‘When will D have breached a duty of care owed to C?’ Two parts: (1) How D ought to have behaved in the circumstances – what was the required standard of care in the circumstances? (2) How D did behave – did they fall below the standard of care required in the circumstances The Objective Standard: Skill Philips v Whitely (William) Ltd [1938] 1 All ER 566, per Goddard J (p 569):  Concerned someone who went to get ears pierced – at jewellers  Infection occurred  Claimant argued jeweller should be held to higher standard  Jeweller doesn’t have the same level as skill as a surgeon when taking on a minor operation Goddard J  ‘If a person wants to ensure that the operation of piercing her ears is going to be carried out with that proportion of skill and so forth that a Fellow of the Royal

College of Surgeons would use, she must go to a surgeon. If she goes to a jeweller, she must expect that he will carry it out in the way that one would expect a jeweller to carry it out.’ Shakoor v Situ [2000] 4 All ER 181:  Claim taken on behalf of claimant went to unorthodox/traditional Chinese practitioner in England  Alleged negligence by practitioner  What is the duty of care? – what standard do we hold a traditional Chinese practitioner to when practising in England  Here, the courts faced a particularly interesting question as to standard.  Q: Should a practitioner of traditional Chinese medicine working in England be compared to a) a reasonable orthodox doctor, b) a reasonable traditional doctor practising in China, or c) a reasonable traditional doctor practising in England?  Individual claimant went to a Chinese medical practitioner, didn’t go to orthodox doctor  Cant hold to same standard as reasonable orthodox doctor – but has to be considered that they are practising in England and alongside western medicine  Standard of care – is that of a reasonable Chinese medical practitioner practising in England Professional Standards Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, per McNair J (p 586):  Involved electro-convulsive therapy  Alleged there was negligence on part of doctor for failing to give sufficient information and predominantly failing to use restraints appropriately  Established idea – clarified professionals practising in their skill will be held to a higher standard than that of the ordinary man – require more of the doctor  Standard is an ordinarily reasonably confident doctor – medical practitioner  Surgeon – higher/different because having training/skills to a medical practitioner McNair J  ‘In an ordinary case it is generally said you judge it [an allegedly negligent act or failure] by the action of the man in the street. He is the ordinary man… But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus [the ordinary man], because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill… it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.’ If we know the standard is that of a reasonably competent doctor – how to we establish that standard Is to be assessed in relation to what’s considered to be proper by a responsible body of the profession Some level of difference shown by courts to medical profession Referring to what the medical field itself considers to be acceptable – when establishing the standard

Per McNair J (pp 587-588)  ‘[H]e 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… 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.’  ‘… it is not essential for you to decide which of two practices is the better practice, as long as you accept that what the defendants did was in accordance with a practice accepted by responsible persons.’  ‘[Y]ou are now considering whether it was negligent for certain action to be taken in August 1954, not in February, 1957…’ Whitehouse v Jordan [1981] 1 WLR 246, per Lords Edmund-Davies and Wilberforce, respectively:  Concerns delivery of a baby – regard to use of forsepts in delivery of child  Defendant had pulled to hard/strongly on head of baby – caused brain damage  Defendants argued that what they did was in-line with an established body of medical opinion Lord Edmund-Davies  ‘[D]octors and surgeons fall into no special legal category, and… I would have it accepted that the true doctrine was enunciated – and by no means for the first time – by McNair J. in Bolam… If a surgeon fails to measure up to that standard in any respect… he has been negligent and should be so adjudged’ (p 258). If performs standard that another group of surgeons would see as reasonable and proper this would be fine Found defendants had acted in accordance with proper standards, would be considered proper by a body of medical practitioner Lord Wilberforce  ‘Did Mr. Jordan pass the limits of professional competence either in continuing traction too long, or in pulling too hard? That is the whole issue’ (p 252); ‘[h]e [Mr Jordan] proceeded to the point when the baby would go no further. He denied that it was “stuck”. He said that he easily pushed it up. All of this was consistent with sound medical practice…’ (p...