Breach of Duty Flashcards
What is the general rule for the standard of care?
The reasonable man is presumed to
be free both from over-apprehension and from over-confidence. The standard of care should be based ‘on the act and not the actor’
What is the professional standard of care?
The test is the standard of the ordinary reasonable man exercising and professing to have that special skill.
What is the standard of care expected of children?
In the case of children the standard
required will be that of the reasonable child of the defendant’s age carrying out that act.
How does illness or disability impact standard of care?
When aware that faculties have ben impaired they will be judged by the standard of a reasonably competent person carrying out that act. Otherwise, the defendant will be judged against the standard of a reasonably competent driver who is unaware that he is suffering a condition that impairs his
ability to drive, for example.
What are the factors relevant to whether the standard of care has been breached?
The likelihood of harm
- The magnitude of harm
- The practicality of precautions
- Any benefit of the defendant’s conduct
- Common practice
- The ‘state of the art’ at the time of breach
- Special rules in relation to sport
What constitutes likelihood of harm?
The more likely someone is to get injured, the more likely it is that there will be a breach.
Key case: Bolton v Stone [1951] AC 850
The claimant was injured by a cricket ball, hit out of the cricket ground. This had happened six times in the previous 30 years and the ground had a 7ft high fence around it. The chance of this happening was therefore so slight that there was no breach; the reasonable person would not
have guarded against such a small risk. A reasonable person does not take precautions against every risk, only those reasonably likely to happen.
Key case: Haley v London Electricity Board [1964] 3 All ER 185
Facts: The blind claimant fell down a hole in the pavement dug by the defendant. The defendant had taken precautions to protect sighted but not blind persons.
Held: The risk of causing injury to blind people was not so small that it should be ignored. The defendant must tailor their conduct in light of the characteristics of people who they know might be affected by their actions.
What constitutes magnitude of harm?
If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.
Key case: Paris v Stepney Borough Council [1951] AC 367
The claimant had only one good eye, a fact known to his employers, the defendants. Despite this, no protective goggles were provided, and he became blind when a piece of metal went into his good eye. The House of Lords held that the defendant was liable. Although the risk of injury was small, the consequences of the injury were significant (loss of sight). They should, therefore, have taken greater care to ensure he wore protective goggles.
Key case: Watson v British Boxing Board of Control Ltd [2001] QB 1134
The body regulating professional boxing breached its duty towards a boxer by failing to provide suitable ringside resuscitation equipment and doctors, in part because the potential harm was serious brain damage.
What constitutes practicality of precautions?
It is also necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to require them to take
the necessary precautions, even against a clearly foreseeable risk, the court will accordingly not impose liability.
Key case: Latimer v AEC Ltd [1953] AC 643
The defendant’s factory floor became slippery following a flood and the claimant slipped on it. The defendant had taken some precautions (laid down 3 tonnes of sawdust), but the only way to guarantee safety would have been to cease operating the factory, or to employ many more people to mop up spills. Neither of these precautions was justified given the small risk of injury to the claimant.
What constitutes benefit of the defendant’s conduct?
The value to society of the defendant’s activity is a factor the courts consider. If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may be justified. In effect, the potential benefits to safety are weighed against any possible damage that
may result if the risk is taken.
Key case: Watt v Hertfordshire County Council [1954] 1 WLR 835
A fireman was injured in a fire engine on the way to answer an emergency call (a woman was trapped under a lorry). The lifting equipment required to deal with the emergency had not been properly secured in transit. It was held that there was no breach by the firemen’s employer, as the
risk of injury was small, and the ultimate aim of saving life justified taking the risk. Where life is at stake, abnormal risks may be justified. This is not a blanket exemption for the emergency services.
Indeed, a fire authority was held to be liable for damage caused by going through a red light on the way to a fire (Ward v L.C.C [1938] 2 All E.R 341).
Compensation Act 2006 s 1
Reflecting the position established in common law, s 1 of the Compensation Act 2006 allows courts to consider the deterrent effect of potential liability on socially desirable activities:
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
Social Action, Responsibility and Heroism Act 2015
This act requires that when a court is considering whether a person has been negligent, it must take into account whether the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others and whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.
What constitutes common practice?
If a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant’s favour, and the defendant may escape liability.
However, note that the court can always rule that the common practice is itself negligent, as it did in the case of Re Herald of Free Enterprise, The Independent, 18 December 1987, where the common practice of sailing a ‘roll-on roll-off ferry’ with the bow doors open was illogical and
therefore declared negligent.
It seems likely that the less expertise / specialist knowledge involved in a particular area, the less weight the court will give to ‘common practice’ as a consideration compared to the likelihood of harm, magnitude of harm, practicality of precautions and benefits from the defendant’s conduct.
What constitutes the state of the art defence?
This principle may also be relevant to establishing whether there has been a breach. The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be regarded as negligence.
The claimants suffered paralysis from the waist down having been injected with an anaesthetic. The anaesthetic was stored in glass ampoules which were kept in a phenol solution to keep them disinfected. Unknown to anyone, invisible cracks in the ampoules, allowed the phenol to
contaminate the anaesthetic. The court held that at the time of the operation (1947) the staff could not be expected to know of this danger. The test to be applied was what a responsible body of medical opinion would know at the time of the operation and not at the time of the court hearing (1954).
What constitutes the sport defence?
When the defendant is participating in sport, the demands of the game will be foremost in their mind and they are likely to take risks in the heat of the moment.
Key case: Wooldridge v Sumner [1963] 2 QB 43
In this case it was decided that nothing short of reckless disregard for the claimant’s safety would constitute a breach. Although in this case it was a spectator, rather than another participant, that
was injured.
Key case: Watson v Gray, The Times, 26 November 1998
It was held that there would be a breach of duty if the reasonable participant (of the defendant’s level) would have known that there was a significant risk that what they did could result in serious injury.
Who must prove the breach has occurred?
The burden is on the claimant to prove that the defendant breached the duty of care. In order to discharge this burden, the claimant must show this, on the balance of probabilities.
Therefore, the obligation is on the claimant to collect evidence that will show that it is more likely than not that the defendant breached their duty. This can often be a very difficult task. However, the claimant may be assisted by s 11 of the Civil Evidence Act 1968.
4.2.1 Section 11 of the Civil Evidence Act 1968
If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results if the conviction is evidence of careless conduct eg dangerous driving.
4.2.2 Res ipsa loquitur
In a very small number of cases, the claimant may also be assisted by the maxim res ipsa loquitur (‘the facts speak for themselves’). The maxim is used where the only plausible explanation for the claimant’s injuries is negligence by the defendant. If the maxim applies it will then be for the
defendant to adduce evidence that shows that they were not negligent. The maxim, therefore, helps claimants who have difficulty proving exactly how an accident occurred.
Key case: Scott v London and St Katherine Docks & Co (1865) 3 H&C 596
The claimant was injured when large sacks of sugar fell onto her. She could not explain how this happened. However, as the sacks were in the defendant’s control, the court inferred that the accident had been due to the defendant’s lack of care, ie the sacks could not have fallen by themselves. The following three conditions must be satisfied for the maxim to apply:
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(a) The thing causing the damage was under the control of the defendant or someone they are responsible for;
(b) The accident would not normally happen without negligence; and
(c) The cause of the accident is unknown to the claimant ie the claimant has no direct evidence of the defendant’s failure to take care.
What is the Bolam test?
Where the professional standard of care has been set, the starting point for determining whether the defendant has fallen below this standard is the Bolam test. Bolam established that professionals are not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
However, the court can find a professional negligent if it concludes that the ‘practice accepted as proper’ does not withstand logical analysis. Knowledge can change quickly in professional areas, and the court must determine how upto-date a defendant should be. Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
Is a medical professional is in breach of duty for a failure to warn of risks of procedures?
Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. A material risk is one which a reasonable person in the patient’s position
would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent.
However, a medical professional can withhold information as to a risk if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health. Medical professionals are
also excused from conferring with the patient in circumstance.
