Breach of Duty - tort law PDF

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Breach of Duty...

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Monday 10th February 2020 Breach of Duty   

Once a duty of care has been established, the next step is to establish a breach of duty ‘Negligence is…doing something which a prudent and reasonable man would not do’ – Blyth v Birmingham Waterworks Co [1856] Two questions: o What standard of care is expected of the particular defendant? o Did the defendant fall below the standard expected of him?

Standard of Care  ‘The person concerned is sometimes described as the man on the street or the man on the Clapham Omnibus or…the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves’ – Hall v Brooklands Auto Racing Club [1933]  Nettleship v Weston [1971] o Defendant was a learner driver o He was not judged according to a reasonable learner driver, but to a reasonable driver  Experts and Professionals o ‘The test is the standard of the ordinary skilled man exercising and professing to have that skill’ – Bolam v Friern Hospital Management Committee [1957] o However, a doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible medical body o Must be capable of withstanding logical analysis  Bolitho v City and Hackney Health Authority [1997] o See Rachael Mulheron ‘Trumping Bolam: A Critical Legal Analysis of Bolithos ‘Gloss’ [2010] 69(3) Cambridge Law Journal 609 o The application of Bolam has been particulary controversial in respect of the provision of advice to patients regarding the risks associated with medical treatment  Sideway v Bethlem Royal Hospital [1985]  Pearce v United Bristol Healthcare NHS Trust [1999]  Chester v Afshar [2005]  Montgomery v Lanarkshire Health Board [2015] o If a layman accepts a specialist task than the individual circumstances of the case will be considered  Wells v Cooper [1958] o Children are not expected to exercise the same care and skill as an adult

 Walmsley v Humenick [1954] o Older children will be assessed according to the standard of the reasonable child of the same age, experience and understanding of the risk  Mullin v Richards [1988] Determining Breach  When determining whether or not there has been a breach of duty the court may have regard to the following factors o Likelihood of harm o Magnitude of the harm likely o Cost practicability of taking precautions o The utility of the Defendants conduct Likelihood of harm  Bolton v Stone [1951]  Lamond v Glasgow Corp [1986]  The defendant must do what is reasonable in the circumstances of the case. The claimant may have certain characteristics which make them more likely to suffer harm than another claimant and this may be taken into account o Haley v London Electricity Board [1965] Magnitude of harm likely  The court will not only take into account the risk of damage, but also the extent of the damage that the claimant is at risk of suffering o Paris v Stepney Borough Council [1951] Cost/practicability of taking precautions  The cost of taking precautions must be measured against the risk of injury  A high cost of taking precautions will not necessarily absolve the defendant liability o Latimer v AEC Ltd [1953] Utility of conduct  The court may be called upon to consider the utility of the defendants conduct in assessing whether or not there has been a breach of duty o Watt v Hertfordshire County Council [1954] The burden of establishing a breach of duty  This usually rests with the claimant however there are two exceptions to this: o Res Ipsa Loquiter o The thing (or situation) speaks for itself and as such the claimant is not required to prove negligence o 1. There is an absence of explanation of how/why the incident occurred

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o 2. The harm is such that it does not usually occur if proper care is taken o The D must have exclusive S.11 Civil Evidence Act 1968 o Where a person is convicted under the criminal law for an offence…

Causation    

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Some torts are actionable per se Other torts, such as negligence, require proof of causation Causation in fact + Causation in law ‘but for’ causation o Barnett v Chelsea and Kensington Hospital Management Committee [1969] The claimant must prove this on the basis of probabilities o Hotson v East Berkshire Area Health Authority [1987] Where there is a combination of factors in play, the courts have been willing to adapt the ‘but for’ test in order to permit recovery o Bonnington Castings Ltd v Wardlow [1956]  ‘material contribution’ o McGhee v National Coal Board [1973]  ‘materially increased the risk’  Reversal of the burden of proof o Wilsher v Essex Area Health Authority [1988]  Premature baby was claimant  He was given excess oxygen when he was born  And the baby was blind  The excess oxygen could have caused the blindness but so could 5 other things that were all different o Fairchild v Glenhaven Funeral Services Ltd [2002]  Remedy in other jurisdictions  Competing injustices – the claimant should have a remedy  The interpretation of McGhee in Wilsher was disapproved of – Wilsher confined to its own facts  Joint and several liability – s.1(1) Civil Liability (Contributions) Act 1978 Some claimants try to overcome the issue of ‘but for’ causation by framing their claim on the basis of a loss of chance The claimant is not claiming for the actual injury but for a percentage of the damages that would have been awarded based upon the percentage loss of a chance o Hotson v East Berkshire Area Health Authority [1987]  25% loss of chance of avoiding avascular necrosis

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Loss of chance recoverable in cases wshere the loss is purely financial o Allied Maples Group Ltd v Simmons and Simmons [1995] However not in the cases where the claimant has suffered physical damage o Gregg v Scott [2005]  See Gore, R. [2005] ‘The dissenting judgement in Gregg v Scott’. In Dissenting Judgements in the Law. Ed. By Geach, N., and Monaghan, C. Wildy, Simmonds and Hill Publishing....