Breach of Duty PDF

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UNIT FOUR: BREACH OF DUTY Reading:

H&R Chap. 8, Cooke Chap 7.

Learning Outcomes: By the end of this topic, you should be able to: 1. Discuss and analyse the factors to be taken into account by the courts when determining whether the defendant has been negligent. 2. Discuss the extent which the ‘reasonable man’ test is adjusted according to age, mental ability or professional skill. 3. Outline the situations where the D may have the burden of proofing that no breach of duty has occurred Having examined whether a duty of care is owed by the defendant to the claimant, it is now necessary to discover whether the defendant's conduct can be characterised as negligent, i.e. has there been a breach of duty of care? 1.

The Objective Standard of Care - The Reasonable Man Test

"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" -per Alderson B in: Blyth v Birmingham Waterworks Co [1856] 11 Exch 781. Note: The objective standard is often defined by the circumstances in which the defendant finds himself. Thus, this may modify the objective standard but usually no account is taken of individual disabilities. Nettleship v Weston [1971] 2 QB 691 Cf. Cook v Cook [1986] 68 ALR 353 Roberts v Ramsbottom [1980] 1 All ER 7 Philips v. Whiteley Ltd [1938] 1 All ER 566 Shakoor v. Situ [2000] 4 All ER 181 2.

The objective Standard and Abnormal Defendants

a)

Children

McHale v Watson [1966] 115 CLR 513 Mullin v Richards and another [1998] 1 All ER 920 b)

The mentally or physically ill

Compare with

Roberts v Ramsbottom [1980] 1 All ER 7 Mansfield v Weetabix [1998] I WLR 1263

3.

Factors of the Objective Standard

a)

The magnitude of the risk

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likelihood of harm occurring Bolton v Stone [1951] AC 580 Lewis v Wandsworth LBC [2020] EWHC 3205 (QB) Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1434 Yachuk v Oliver Blais [1949] AC 386 Haley v London Electricity Board [1965] AC 778 What is known about the risk at the relevant time? Roe v Ministry of Health [1954] 2 QB 66

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Seriousness of the harm likely to occur Paris v Stepney Borough Council [1951] AC 367 Harris v. Perry [2008] EWCA Civ 907

b)

The Object to be achieved/ Social Utility Watt v Herts County Council [1954] 1 WLR 835 Armsden v Kent Police [2009] EWCA Civ 631 Scout Association v Barnes [2010] EWCA Civ 1476

c)

Cost and practicality of precautions Latimer v AE.C. [1953] AC 643 The Wagon Mound (No 2) [1967] 1 AC 617 Tomlinson v. Congleton Borough Council [2004]1 AC 46 under the Occupiers’ Liability Act 1984. The Compensation Act 2006 s1 Cole v. Davis-Gilbert [2007] EWCA Civ 396

d)

The standard expected during sporting activities Wooldridge v Sumner [1963] 2 QB 43 Condon v Basi [1985] 1 WLR 44

e)

General approved practice

When the defendant acts as is the common practice of others this constitutes strong evidence that he has not been negligent. However, the common practice may itself be negligent. “Neglect of duty does not cease by repetition to be neglect of duty” per Lord Tomlin in Bank of Montreal v. Dominion Gresham [1930] AC 659 at p666 Re: Herald of Free Enterprise: Appeal by Captain Lewry, The Independent 18.12.87. Equally, departure from common practice is not necessarily negligence. 4.

The Objective Standard and Skilled Defendants

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 per McNair J "The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skills at the risk of being found negligent … it is sufficient he exercises the ordinary skills of an ordinary competent man exercising that particular act." In the context of medical negligence, the defendant is not negligent if he acts in accordance with a practice accepted at that time as proper by a responsible body of professional opinion skilled in the particular treatment, even if there is a body of competent professional opinion which might adopt a different technique. (The Bolam test.) Wilsher v. Essex Area Health Authority [1987] QB 730 Whether a failure to warn or advise amounts to a breach of duty Sidaway v Bethlem Royal Hospital [1985] Cf. Chester v Afshar [2004] UKHL 41

Gold v. Harringay Health Authority [1987] 2 All ER 888

But now consider Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 And more importantly Montgomery v Lanarkshire Health Board [2015] UKSC 11 BREACH OF DUTY: Proof of Negligence 1.

Burden of Proof

It is for the claimant to show that, on the balance of probabilities, the defendant has been negligent. However, the general rule is relaxed in two circumstances: a)

Proof of Criminal Conviction Civil Evidence Act 1968 s.11

b)

Res Ipsa Loquitur "The thing speaks for itself' i.e. a submission that the facts establish a prima facie case of negligence. Scott v London & St Katherine Docks Co [1865] 3 H & C 596 The maxim has three criteria for application. i)

The defendant had control of the thing that caused the damage Gee v Metropolitan Railway [1873] LR 8 QB 161 C.f. Easson v London + North Eastern Railway [1944] 1 KB 421

ii)

Accident must be such as would not normally happen without negligence. Scott v London + St Katherine Docks Co supra Mahon v Osborne [1939] 2 KB 14 Cassidy v. Ministry of Health [1951] 2 KB 343, 365 “A patient who goes into hospital for the treatment of two stiff fingers and comes out with four stiff fingers is entitled to put the hospital to an explanation” Per Denning LJ

iii)

Cause must be unknown i.e. there is no explanation for the accident

Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 2

What is the EFFECT of the claimant establishing res ipsa loquitur? Colvilles Ltd v Devine [1969] 1 WLR 475 Henderson v H E Jenkins & Sons [1970] AC 282. Ward v Tesco Stores Ltd 1 WLR 810...