Breach of Duty - Summaries based on lecture\'s course outline and Norcahaya Law of Tort textbook PDF

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NEGLIGENCE: BREACH OF Blyth v Birmingham Waterworks Negligence is the omission to do something which a reasonable man would do, or which a reasonable man would not A breach of duty is determinable through the reasonable man The question is: would a reasonable man have acted as the D has done if the ...

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NEGLIGENCE: BREACH OF DUTY

The ‘Reasonable Man’ Test -

Case: Blyth v Birmingham Waterworks Co  Negligence is the omission to do something which a reasonable man would do, or doing something which a reasonable man would not do.  A breach of duty is determinable through the reasonable man test.  The question is: would a reasonable man have acted as the D has done if the reasonable man was faced with the same circumstances as the D?

1. Flexibility in the meaning of ‘reasonableness’ - Case: Glasgow Corporation v Muir  Lord Macmillan: The standard or foresight of the reasonable man … eliminates the personal equation and is independent if the idiosyncrasies of the particular person whose conduct is in question. - What may seem to be reasonable, normal and thus acceptable to one judge may be something unreasonable, absurd and unacceptable to another. - Case: Nettleship v Weston  The lower court held that the D, a learner-driver was not liable for the injury she caused to the P as she had tried to control the car to the best of her liability.  On appeal, the CoA held that the standard of care required of a learner-driver was the same as other experienced drivers.  The D’s lack of experience was irrelevant and as the way in which she drove fell below the required standard of care, she was liable.  The court further stated that it would indeed be difficult if courts had to take into account the different levels of experience of each D. Reasonableness and things naturally dangerous - Case: Glasgow  D spilled hot tea on some children, and the issue faced by the court was whether the D should have foreseen that injury would occur when he brought a big container of tea through the corridor of the premises.  The court answered in the negative as a reasonable man would not have foreseen such an accident in the circumstances.  The court also distinguished btw things that are naturally dangerous and those which are not.  If the object or thing that gives rise to the negligence is naturally dangerous than it is more likely that liability will be imposed and vice versa. - Case: Gov of Malaysia & Ors v Jumat bin Mahmud & Anor  A pupil who was sitting behind the P, pricked the P’s thigh with a pin.  The P turned around and his eye came into contact with the sharp end of a pencil which the pupil was holding.  The eye was badly injured and had to be removed.

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FC held that in considering whether or not the Ds were in breach of their duty of care, it was necessary to consider whether the risks of injury to the P were reasonably foreseeable. Assuming it was, the next question was whether the Ds had taken reasonable steps to protect the P against those risks. In this case, the court found that the particular form mistress did not expose the P to injury that was reasonably foreseeable. Further, constant vigilance in the classroom would not have prevented the injury sustained by the P.

2. Level of intelligence and knowledge - Case: Hall v Brooklands Auto-Racing Club  Green LJ describes the reasonable man as ‘the man on the street’, or the ‘man on the Clapham Omnibus’, or the ‘man who takes the magazine at home and in the evening pushes the lawnmower in his shirt sleeves’. - Case: Vaughan v Menlove  D’s actions must conform to the criteria expected of a person of normal intelligence.  It is no good if the D has done his ‘best’, if his ‘best’ is below that of the reasonable man. - If D is of higher intelligence than the reasonable man, he will not be expected to reach that personal higher level of intelligence to a given situation. - Case: Haley v London Electricity Board  A P who has a physical disability is judged by the standard of persons who suffer from the same physical disability, and it follows that to impose a higher standard of care on a D with below-average intelligence would be blatant discrimination against such persons. - Case: Caminer v Northern and London Investment Trust  If the D is a person who, by virtue of his status, is deemed to possess particular knowledge about a specific situation, the standard of care applicable to him is that of the reasonable man in that position.

3. The defendant who has or professes expertise in a particular field - He will be judged as against other persons who possess the same skills. - Case: Phillips v William Whiteley  The standard of care required of a jeweller when piercing a person’s ears for purposes of wearing earrings is that of a skilled and competent jeweller doing such work, and not a competent surgeon.  The jeweller in this case was found not liable when the P contracted a disease which she would not have contracted if her ears had been pierced by someone with medical skills. - Case: Wilsher v Essex Area Health Authority  A premature baby was given excess oxygen due to an error in monitoring its oxygen supply.  A junior doctor inserted a catheter into a vein instead of an artery and this caused an inaccurate reading of the oxygen level.

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The doctor administered more oxygen to the baby with the consequence that the baby became blind. In a claim for negligence, the doctor raised the fact that he was a junior and inexperienced doctor and so the standard of care applicable to him ought to be standard of care of another doctor with the same level of limited experience. In a majority judgment, the CoA held that the standard of care should be related to the ‘post’ of the D and not his individual level of experience or competency and in this case it was a person who filled the post of a skilled and competent doctor.

4. The defendant with an incapacity or infirmity - Case: Roberts v Ramsbottom  D was completely unaware that he had suffered a stroke before getting into his car.  He then collided with and injured the P.  The court held him liable despite his being unaware of his impaired consciousness at the time of the accident. - Case: Mansfield v Weetabix Ltd  D who was driving, went into a hypoglycaemic state induced by a malignancy.  He was partially lost consciousness but was completely unaware of his condition, and got into a collision with the P.  CoA held that since the D was not and could not reasonably have been aware of his condition, this disability or infirmity must be taken into account in determining whether he had met objective standard of care. - Street’s logical explanation: A person who causes an injury to another because he suffers from some disability or infirmity will nonetheless usually be negligent, not because of want of care at the time of the accident, but because, being aware of his disability, he allowed himself to be in the situation; a motorist with seriously impaired eyesight who collides with another car because she fails to see an approaching vehicle is not negligent because she is partially sighted, but because, given her defective vision, she is negligent in electing to drive as to endanger others.

5. The child defendant - The standard of care required of a child defendant is the foresight of a child of the same age. - Case: McHale v Watson  D, aged 12, threw a piece of welding rod which had been sharpened at one end, at a wooden post.  The rod ricocheted off the post and hit the P.  HC of Australia, applying the foresight and prudence of an ordinary boy of twelve, found the D not liable. - Case: Mullin v Richards  Two 15-year-old schoolgirls were fencing with plastic rulers during a mathematics lesson.  One of the rulers broke and entered one of the girl’s eye and she became blind.  Holding the D not liable, the court stated that a 15-year-old, unlike an adult, could not be expected to foresee the risk of her behaviour.

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Some degree of irresponsibility is expected of children playing together.

6. Driver of a vehicle - Case: Roberts v Ramsbottom  The driver was found liable in negligence even though when the accident occurred his consciousness was impaired by a stroke.  The court felt that he ought to have been aware that he was unfit to drive, and so the standard of care required was that of a skilled driver. - Case: Wong Li Fatt William (an infant) v Haidawati bte Bolhen  The court held that a driver must be in reasonable control of the vehicle he is driving at all times and if the driver knows or ought to know that the area in which he is driving is inhabited, the he must anticipate that he may be put in an emergency situation at any time while passing that area.  This also means that the driver must be prepared to halt the vehicle in the event of such an emergency occurring.

7. The professional defendant - Case: Bolam v Friern Hospital Management Committee  P alleged negligence on 3 grounds: 1) D did not warn the P of the risks involved in an electro-convulsive treatment (ECT) 2) D did not give the P any relaxant before the shocks were given to him 3) D did not hold down the P’s body whilst the treatment was being administered  Regard to the ground 3, there are 2 conflicting views, one view holding that during an ECT, the patient’s must be held down, the other view was that that was not necessary.  McNair J: … where you get the situation which involves the use of some special skill or competence … the test is standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill … it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art … in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time … there may be one or more perfectly proper standards; and if (he) conforms with one of those proper standards, then he is not negligent.  The D was found not liable as he had conformed to the standard of reasonable doctors and his not holding down the P’s body was not an improper course of action. - Case: Sidaway v Bethlem Royal Hospital Governors  P underwent an operation on her vertebrae, which operation carried the risk of damage to her spinal cord.  The surgeon did not specifically inform her of the risk.  P claimed on the basis that she was not given any warning as to the risk.  The court found D not liable for not disclosing to the P the risk of injury to her spinal cord as the surgeon had acted in accordance with accepted medical practice.  Applying the Bolam’s test, the hospital and surgeon were not liable as the surgeon had reached the required standard of care, even though he did not inform the P of the risks involved.

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Case: Chin Keow v Government of Malaysia & Anor  An amah was given a penicillin injection at a clinic.  She died about an hour later.  PC overturned the decision of FC and agree with the HC that the doctor had been negligent as it was expressly written on the patient’s card that she was allergic to penicillin. Case: Elizabeth Choo v Government of Malaysia & Anor  Raja Azlan Shah J stated that a professional will not be deemed to be negligent if he has taken steps that would normally be taken by others who are in the same position. Case: Liew Sin Kiong v Dr Sharon DM Paulraj  However, a professional who takes a different view from another professional in the same profession is not necessarily in breach of his duty of care provided that his opinion is still in accordance with what is regarded as proper by a body of similarly skilled professionals.

(a) A different test for the medical profession in cases of provision of information - Case: Rogers v Whitaker  Mrs Whitaker became almost totally blind in her left eye as a result of a condition known as sympathetic ophthalmia, after a surgery conducted on her right eye.  P’s allegation was grounded on the D’s failure to advise her of the risk which resulted in her condition.  There was a 1:14000 chance of this condition developing in this case and the patient had repeatedly asked the doctor of possible complications, including the danger of unintended or accidental interference with her ‘good’ left eye.  The doctor did not warn her of sympathetic ophthalmia as it was not a risk which came to his mind.  The body of medical opinion prevailing at the time was that the risk ought to have been disclosed to her if she had asked specifically if her good eye would be affected by the operation on her other eye.  She did not ask this specific question.  Thus if Bolam had been applied there would have been no breach of duty of care.  The court stated that informing the patient the truth, or answering the patient’s questions truthfully overrides any opinion or practice held by a respectable body of medical men.  A more acceptable approach is to recognise and attach significance to the relevance of a patient’s questions.  Principle: the duty of care imposed on a doctor is a single comprehensive duty covering all the ways in which a doctor exercises his skill and judgment, and extends to examination, diagnosis and treatment as well as provision of information to the patient. (b) The broader impact of Rogers v Whitaker - Case: Tan Ah Kau v The Government of Malaysia  The court held that since the risk of paralysis in that case was real, the doctor was under a duty to warn the patient of that material risk, particularly if the patient, if warned of the risk, would have considered it to be significant. - Case: Foo Fio Na v Dr Soo Fook Mun

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P was injured when the care she was travelling in was involved in a collision. She was taken to the nearest hospital, the Assunta Hospital. P had dislocated her cervical vertebrae which caused much pain in her neck. The D surgeon performed the first of two surgeries. After the first surgery, P was paralysed and when medication failed to improve her condition, the D performed the second surgery. There was slight improvement but the P’s paralysis was permanent when she was discharged from the hospital some 9 months later. P claimed that the paralysis was caused by the first surgery and D had been negligent in the surgical procedure adopted during the surgery that caused her paralysis and the D was negligent in his failure to rectify the situation immediately after the first surgery. P further claimed that D failed to explain her the risk of paralysis and instead informed her that it was a minor procedure. FC held Bolam test is not applicable to determine the standard of care in relation to disclosure of information and risks. The medical practitioner has a duty to warn a mentally competent patient of risks to enable the patient to decide whether to proceed or decline it.

(c) Practice and knowledge at the time of the alleged breach - Case: Roe v Minister of Health  P was paralysed from the waist down after an operation because the solution which was used for the required injection was mixed with phenol, another solution that was placed around the container containing the injection solution.  Evidence showed the container was cracked, but that it could not have been detected according to the state of knowledge at that time.  CoA found that the doctor knew of the consequences of a phenol injection, and he had examined the injection solution before giving the injection.  Lord Denning held the doctor not negligent in not testing the phenol as possibility of cracks occurring in such a situation was only discovered in the medical field in 1951, whereas this incident took place in 1947.  The standard of care must therefore be based on current medical knowledge at the time of alleged breach, not at the time of the trial.

The Concept of Risk -

Sometimes known as the risk test. The court, having considered the facts and all the circumstances of a case, will pose the question: what is the possibility of harm or risk caused to the P as a result of the D’s conduct? May be rephrased as follows: is it reasonably foreseeable that the D’s conduct will cause damage to the P? If the answer is ‘yes’, then the D will be required to exercise a proportionate degree of care to avoid the harm from materialising. Case: Fardon v Harcourt Rivington  Lord Dunedin: … if the possibility of the danger emerging is reasonably apparent then to take no precautions is negligence, but if the possibility of danger emerging is only a mere possibility

which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

1. Magnitude of risk (a) Probability of the injury occurring - Case: Bolton v Stone  P was hit by a cricket ball which had been hit out of a cricket ground.  HoL held that the distance btw the place where the ball was hit to the edge of the field which was surrounded by a seven foot wall made injury to the P rather remote.  It was further held that although a reasonable man may foresee many risks, life would be inconvenient if precautionary measures are to be taken for all foreseeable risks.  A person must only take reasonable steps against risks that may materialise. - Case: Hilder v Associated Portland Cement Manufacturers Ltd  P who was riding his motorcycle on the highway was killed when a football went onto the highway.  The occupier of the land was found liable in negligence in allowing children to play football on his land, as the likelihood of injury to passer-by was much greater than in Bolton’s case. (b) Seriousness of the injury - Case: Paris v Stepney Borough Council  P who was blind in one eye worked for the D and the working conditions were such that there was risk of injury to the eyes.  A piece of metal hit his good eye when he was working and became completely blind thereafter.  HoL held that the employer had a duty to take reasonable care to ensure the safety of the working environment of his employees.  If the D knew or ought to know that the risk of injury to the P is higher than usual, then he must take extra precautions to avoid the potential injury. - If the D has actual knowledge of the circumstances of the P and the D has a duty to protect the welfare of that P, the measure of care undertaken must be proportionate to the individual needs of that P.

2. Practicability or cost of precautions to the defendant - The risk must be measured against the precaution that needs to be taken, and all precautionary measures undertaken by the D will be taken into account in determining the reasonableness of the D’s conduct. - Case: Latimer v AEC  D’s factory was flooded due to heavy rain.  The mixture of water and oil caused a part of the floor of the factory to be slippery and sawdust was placed over the slippery parts.  Not all area was fully covered and P employee slipped and fell.

P contended that the D should have shut the factory down. HoL held that the risk of injury was insufficient to warrant the shutting down of the factory.  If the risk of injury is low, it would be unfair to require a lot of expense on the part of the D to reduce the risk. Case: Hamzah & Ors v Wan Hanafi bin Wan Ali  P, who was a passenger on a train hopped off and injured himself before the train fully stopped.  FC held that the D indeed done all that was reasonable and sufficient to safeguard the passengers’ safety and they were accordingly held not liable.  There were written notices and oral warnings that passengers should not stand near the doors or jump off before the train fully stopped.  To require the D to take extra precautionary measures such as placing guards at every single door would rather be extreme and would incur a high cost.  

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3. The importance of the object to be attained - Case: Watt v Hertfordshire County Council  P (a fireman) answered an emergency call for a woman who was trapped under a lorry.  The fire-engine which usually carried the jack was not available and so the jack was brought onto a normal fire-engine.  On the way to the emergency scene, the jack fell and hurt the P.  P’s employer was held not liable as the risk had to be measured against the importance of the object to be attained.  If the object involves the sav...