Breach of Duty - Tuto PDF

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Breach of Duty In order to determine whether a defendant is in breach of his duty of care, the law sets a standard which effect is that the conduct of the defendant is compared to the conduct of the reasonable man is the “reasonable man” in the eyes of the law? Would there be different types of the ...

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Breach of Duty 1. In order to determine whether a defendant is in breach of his duty of care, the law sets a standard which effect is that the conduct of the defendant is compared to the conduct of the reasonable man.Who is the “reasonable man” in the eyes of the law? Would there be different types of the “reasonable man”, leading to different standards? Is this fair? In Blyth v Birmingham Waterworks Co, it was stated that negligence is the omission to do 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 defendant? The standard of care required is not that of the defendant himself, but of this ‘reasonable man’. The standard of reasonable man can be seen in varied circumstances. 1. Flexibility in the meaning of reasonableness Personal characteristics of the defendant will not be taken into account, but the usual norms and activitites in a particular society or a particular profession will be considered in determining the reasonableness of the defendant’s conduct. It is also up to the judge to determine the action that would be taken by a reasonable man in every situation as well as to decide what should have been foreseen by the defendant..

In Nettleship v Weston, the lower ct held that the def, a learner driver was not liable for the injury she caused to the plaintiff as she had tried to control the car to the best of her ability. On appeal, the COA held that the standard of care required of a learner driver was irrelevant as the way in which she drove fell below the required standard of care, she was liable. The ct further stated that it would indeed be difficult if courts had to take into account the different levels of experience of each def.

Reasonableness and things naturally dangerous. In Glasgow Corp v Muir, the defendant spilled hot tea oon some children and the

issue faced by the court was whether the defendant should have foreseen that injury would occur when he brought a big container of tea through the corridor of the premises. The ct answered in the negative as the reasonable man would not have foreseen such an accident in the circumstances. The court also distinguished between things that are naturally dangerous and those which are not. If the object or thing that gives rise to the negligence is naturally dangerous, it is more likely that liability will be imposed and vice versa. 2. Level of intelligence and knowledge The reasonable man is not expected to be a perfect man. In Hall v Brooklands Auto-Racing Club, Greer LJ described 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’.

The defendants action must conform to the cirtieria expected of a person of normal intelligence. It is no good if the defendant has done his ‘best’ if his ‘best’ is below that of the reasonable man. Similarly if the defendant 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. The standard against which his conduct is measured remains that of the reasonable man. The impostition of a higher standard seems unfair to the ‘slow and below- average; defendant but perhaps it may be justified on the basis that it is not porssible to ascertain which accuracy the exact level of a person’s intelligence and conduct is reasonable for that particular level of intelligence. This argument is strengthened by the fact that a plaintiff who has a physical disability is judged by the tandard of persons who suffer from the same physicial disability, and it follows that to impose a higher standard of care on a defendant and it follows that to impose a higher standard of care on a defendant with below-average intelligence would be blatent discriniation against such persons. 3. The defendant who has or profess expertise in a particular field

When a person professes to have a special skill or expertise in a aparticular field, he will be judged as against other persons who posess the same skills. In Phillips v Wiilliam Whiteley, it was held that the standard of care required of a jeweler when piercing a person’s ear for purposes od wearing earrings is that of a skilled and competent jeweler doing such work and not that of a competent surgeon. The jeweler in this case was found not liable when the plaintiff contracted a disease which she would not have contracted if her ears had been pierced by someone with medical skills. 4. The defendant with an incapacity or infirmity It is unclear wheather the action or omission of a defendant who has an incapacity or infirmity should be judges through the perception of an ordinary and reasonable normal person . the general rule is that the defendant’s action must conform to the standard expected of a person with normal intelligence. So a man whose level of intelligence is below average would have to satisfy a higher standard of care in his actions. In Roberts v Ramsbottom, the def was completely unaware that he had suffered a stroke before getting into his car. He then collided with and injured the pf. The ct held him liable despite his being unaware of his impaired consciousness at the time of the accident. 5. The child defendant The standard of care required of a child def is the foresight of a child of the same age. In McHale v Watson, the def aged twelve threw a piece of welding rod which had beem sharpened at once end at a wooden post. The rod ricocheted off the post and hit the pf. The Hight ct of Australia applying the foresight and prudence of an ordinary boy of twelve, found the def not liable. In Mullin v Richards, the COA in England adopted the Australian test in relation to a child defendant. Two 15 year old school girls were fencing with plastic rulers during a mathematics lesson. One of the rulers broke and entered one of the girls’ eye. She became blind. Holsding the def not liable, the ct stated that a 15-year-old unlike an adult could

not be expected to foresee the risk of her behavior. Some segree of irresponsibility is expected of children playing together. 6. Driver of a vehicle An exception lies in cases where the def drives a vehicle. In Roberts v Ramsbottom, the driver was found liable in negligence eventhough when the accident occurred his counsciousness was impaired by a stroke. The ct 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. 7. The professional defendant. The standard of care required of these professionals who are bound to exercise the care and skill of ordinary competent practitiotners in their reasonable professional.

2. Risk factors are taken into account by the courts in determining whether the defendant is in breach of duty. Discuss the risk factors currently applicable in the law. There are various factors that can be considered to raise or lower the standard of duty. 1. Are there any special characteristics of the Defendant? The defendant is expected to be a reasonable competent person performing the task. This is straightforqard when dealing with everyday people doing everyday tasks. In Wells v Cooper 1954, a man fitted a new door handle to the outside of the back door of his hourse. The door was at the top of some steps. The door was difficult to close. On the day the accident happened as there was a high wind blowing against the door. The claimant was leaving the house and pulled hard on the door to shut it. The handle came away in his hand and he fell down the steps and was injured. The court decided that a reasonable competent carpenter would have done the work to a similar standard as the man doing DIY on his house, so he has reached the standard of a reasonable competent person attaching a door handle. The positition is much the same when

dealing with a professional. When you go to hospital for an operation, you expect the same standard from your surgeon whether it is his first operation ever or not. The test here is whether his operating to the standard expected under a known and accepted procedure. This can be seen from the case of Bolam v Firern Barnet Hospital Management Committee 1957. It should be noted that where a reasonable man cannot know that a standard procedure is in fact dangerous, he will not break the duty of care. This is because the reasonable man is not expected to know and protect against risks of harm that are not yet known scientifically. Once the risk is known there can be a breach of duty. This can be seen in Roe v Minister of Health 1954. In this case, the claimant was injected with an anesthetic contained in glass ampoules which were, prior to use, immersed in an antiseptic solution. The ibject of this was to keep the risk of infection to a minimum. Unfortunately, the claimant suffered a permanent paralysis from the waist downwards, as the anesthetic had been contimanted by antiseptic which had seeped through invisible cracks in the ampoules. At the time the risk of this happening was not appreciated by competent anaesthetists in general and such contamination had not happened before. Therefore the duty of care owed by the hospital had not been broke.

2. Are there any special characteristics of the claimant? The reasonable man takes more care where the situation demands it. This factor relates to risks known to the defendant as a result of peculiarities of the claimant. This is seen by the care Paris v Borough Council 1951 whereby the claimant was employed as a fitter in a garage. His employer, the local council, knew he had the use of only one eye. While he was using a hammer to remove a bolt on a vehicle a chip of metal flew off and entered his good eye. This resulted in his becoming totally blind. The council did not provide goggles for him to wear. In 1950, it was not common practice for employers to supple goggles to men employed in garages on the maintenance and repair of vehicles. So had Mr Paris been fully sighted, the council might not have broken their duty of care. Because the council knew he was blind in one eye when they employed him, the court decided that the council owed him a higher standard of care because of this known, increased risk. The principle applies equally to illness. In Walker v Northumberland County Council

1955, the claimant was a social services manager who had been forced, because of local authority funding shortages to take on a far higher volume of work than he could cope with. He suffered several weeks of being unable to work because of a stress-related illness. This then became a special characteristic of Mr Walker known to the defendant. When he returned to work the local authority made little or no effort to improve his situation. The claimant then suffered another long period of illness. The court referred to the principle in Paris v Stepney Borough Council that the standard of care expected of an employer is raised if the employer knows that an employee is more likely to suffer injury. Thus the claimant was owed a higher standard of care that had been broken. Another example of this is that a higher standard of care is expected by organizers and sports coaches to disable athletes because of their special needs and this can be seen in Morrell v Owen 1983. The facts of this case were that at a sports event for disabled athlete, archery and discus activities took place in the same hall, separated by a curtain which billowed out from time to time when struck by a discus. The claimant was an archer, and was close to the curtain when a discus struck her head (through the curtain) and caused brain damage. 3. What is the size of the risk? The principle is that the greater the risk, the more care need to be taken. To some extent this is n extension of the ideas behind the previous factors. The reasonable man takes more precautions where the risk is greater but does not take precautions against highly unlikely events. The classic case on this factor is Bolton v Stone 1951. During a cricket match, a batsman struck a ball which hit a person who was standing outside her house on the road outside the ground. The ball was hit out of the ground over a protective fence five metered high. The distance from the striker to the fence was about 70 meters and that to the place where the person was hit nearly 100 metres. The ground had been used as a cricket ground for about 90 years and only on six occasions in the previous 30 years had a ball been hit out of the ground in that direction and no one had previously been injured. The court decided that the risk of injury to a person from a ball being hit out of the ground was so small that the probability of it happening would not be anticipated by a reasonable man. Therefore the cricket club had not broken its duty of care as it had reached the appropriate standard of care. The club had clearly though about the risk and provided a reasonable solution. A combination of this factor and a person with a

disability can be seen in Haley v London Electricity Board 1964. A blind man was walking along the pavement on his way to work. He was using his white stick to go along a route he knew very well. The electricity board had opened a trench and warned of it in the then conventional manner of laying a tool on the ground to force people to walk round it. The blind man did not notice the tool with his stick and fell over it into the trench. The court decided that it was reasonable foreseeable that a blind person might be in the area as about one in 500 people is blind or partially sighted. Thus the reasonable man would take precautions to prevent such an accident happening as it was a reasonable risk to protect against and not a fantastic possibility. Of course, today’s procedure for warning of such an obstacle protects against this risk. 3. Have all practical precautions have been taken? It follows from the previous factor that a defendant will have acted reasonable if he has taken reasonable precautions. Thus the nets around the cricket ground in Bolton v Stone 1951 were a reasonable precaution but the tool left on the ground was not in Haley v London Electricity Board 1964. The idea behind this factor is that the reasonable man will do all he reasonable can to prevent harm coming to others. In situations that are unexpected, this may not always prevent an accident but the key is the reasonableness of the action taken. In Latimer v AEC 1952, the defendant’s factory was flooded after an exceptionally heavy rainstorm. The water, mixed with some oil made the floor very slippery. The def put up warning signs, passed the message rounf the workforce and used all their supply of sand and sawdust to try to dry the floor. Despite this, the claimant slipped and was injured. The defendant owed a duty of care to the employees, but had not broken the duty as the precautions taken to prevent an accident were sufficient in the circumstances as all reasonable practical precautions had been taken. 4. What are the benefits of taking the risk? This factor is sometimes called public utility. The idea is that there is a lower standard of care when reacting to an emergency. This is consistent with the idea of fair, just and reasonable in the third part of the test to establish a duty of care. The most famous example of this is Watt v Hartfirdshire County Council 1954. This case concerns firefighters who were injured by lifting gear when travelling in a vehicle not specifically fitter for carrying that gear. The vehicle that the fire-fighters should have used was adapted to carry the gear. However, that vehicle was already in use attending an

emergency when the call came to go to another emergency where a woman was trapped under a heavy vehicle. The court held that the fireman were ready to take the risk of using the vehicle to save life. The court must ‘balance the risk against the measures’ and the benefit of saving the woman was greater than the risk of injuring the fire fighters by using a vehicle not suited to carrying the heavy gear which moved and crushed a fire-fighter. Thus the duty of care owed by the council to its employee fire fighters had not been broken. The approach of the courts is very realistic when an emergency arises as the courts want to encourage rescuers on the one hand, but also want to make sure employers are not put off encouraging employees to effect a rescue by the threat of being sued in negligence because they had no taken all reasonable precautions. In another recent case, Day v High Performance Sports 2003, Md Day a reasonably experienced climber, fell while climbing on an climbing wallbelonging to the defendant. Unfortunately she suffered a serious brain injury. At a heigh of 3- feet she had discovered she was not tied to her top rope and had to be rescued by the duty manager because she was ‘frozen’ in her position. The court recognized that this was an emergency situation and that the circumstances of the mergency had to be taken into account. In fact the centre was one where a concern for safety was prominent and workshops on safety were given to employees. The court concluded that the climbing centre had not broken its duty of care and had reached the standard of care of a reasonable competent climbing centre....