Breach of Duty

Question 1

What is the general rule of the standard of care?

Answer 1

D has acted like the reasonable man?

Question 2

What was the original case for the standard of care being that of the ‘prudent and reasonable man’?

Answer 2

Blyth v Birmingham Waterworks (1856)

Question 3

What did Blyth v Birmingham Waterworks (1856) say the standard of care owed was?

Answer 3

“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.”

Question 4

Which are the 2 most famous cases which describe the reasonable man?

Answer 4

Hall v Brooklands Auto Racing (1933)

AC Billings & Sons v Riden [1958]

Question 5

How does Greer LJ define the reasonable man in Hall v Brooklands Auto Racing [1933] ?

Answer 5

“… the man in the Clapham Omnibus, or … the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.”

Question 6

How does Lord Reid define the reasonable man in AC Billings & Sons v Riden [1958]?

Answer 6

in considering what a reasonable person would realise or would do in a particular situation we must have regard to human nature as we know it, and, if one thinks that in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way

Question 7

What is the nature of the test of the reasonable man?

Answer 7

Objective -but the court will look at what the circumstances were and how a reasonable man objectively would have acted in those circumstances

Question 8

Which case and judge illustrated the objective nature of the test?

Answer 8

Glasgow Corporation v Muir [1943]

Lord Macmillan

Question 9

What did Lord Macmillan say in Glasgow Corporation v Muir [1943] ?

Answer 9

It is still left to the Judge to decide what in the circumstances of the particular case the reasonable man would have had in contemplation and what, accordingly, the party sought to be made liable ought to have foreseen

Question 10

What principle is often applied to the circumstances to see if there is a breach?

Answer 10

‘Act not the actor’

Question 11

What is the key case for act not actor?

Answer 11

Nettleship v Weston [1971]

Question 12

What happened in Nettleship v Weston [1971]?

Answer 12

A learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for her lack of driving experience. She was required to meet the standard appropriate for the act she was carrying out (driving), not a standard adjusted to her as the actor (a learner driver).

Question 13

Which case demonstrates that someone should only be held to the reasonable standard of someone in their profession?

Answer 13

Philips v William Whiteley [1938]

A jeweller will not be held to the standard of a surgeon when piercing ears, only that of a reasonable jeweller

Question 14

Philips v William Whiteley [1938]

Answer 14

You will be held to the standard of someone else acting reasonably in the same capacity as you

Question 15

Which case stated that a higher degree of care would be required of a better standard of sportsman?

Answer 15

Condon v Basi [1985]

Question 16

What is an area of law where the ‘act not actor’ is particularly important?

Answer 16

Standard of care expected from professionals

Question 17

Why does the standard expected of professionals differ from a normal citizen?

Answer 17

It is not the reasonable man ‘on the Clapham Omnibus’ but a reasonable professional in the same field

Question 18

What is the case for standard expected of professionals?

Answer 18

Bolam v Friern Hospital Management Committee [1957]

Question 19

What happened in Bolam v Friern Hospital Management Committee [1957] ?

Answer 19

The case concerned a claimant requiring treatment for depression. At the time there were two bodies of competent medical opinion as to the procedure to be used in giving electro-convulsive therapy (ECT). Some advocated the use of relaxant drugs whilst other psychiatrists did not. In the event, no such drugs were used and the claimant suffered a fracture of the pelvis. It was admitted that if the drug had been used then the risk of the fracture would have been excluded.

Question 20

Which judge devised the ‘Bolam test’?

Answer 20

McNair J

Question 21

What did McNair J define the Bolam test as?

Answer 21

The test is the standard of the ordinary reasonable man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art

Question 22

Courts are reluctant to accept a lower standard than the reasonable man, but when will they?

Answer 22

Children, they are held to the standard of a reasonable child of the same age

Question 23

2 cases for children and the standard they are held to?

Answer 23

Mullin v Richards[1998] - not liable

Orchard v Lee [2009] - for a child to liable they must be negligent to a very high degree

Question 24

Why is the case of Wilsher v Essex [1986] important?

Answer 24

It confirmed Nettleship in that inexperience would not negate responsibility on application of the Bolam Test, but might not be liable if acting on advice of a senior professional

Question 25

Cases that illustrate where disability/illness come into a breach of duty?

Answer 25

Roberts v Ramsbottom [1980] - negligent

Mansfield v Weetabix Ltd [1998] - not negligent

Question 26

Roberts v Ramsbottom [1980]

Answer 26

The defendant was negligent; he had to be judged according to the standard of the reasonable competent driver. He should have stopped the car as soon as he realised that his driving was being affected. Neill J held that the defendant could only escape liability if the incapacity amounted to a total loss of consciousness or control.

Question 27

The defendant was negligent; he had to be judged according to the standard of the reasonable competent driver. He should have stopped the car as soon as he realised that his driving was being affected. Neill J held that the defendant could only escape liability if the incapacity amounted to a total loss of consciousness or control.

Answer 27

The defendant should be judged in comparison with a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive. The driver was thus found not liable.

Question 28

Two stages to determining if there has been a breach of duty?

Answer 28

1) The standard of care to be expected of the defendant must be established. This is a question of law.
2) All the facts and circumstances must be examined to see if the defendant has fallen below that standard = breached the duty. This is a question of fact.

Question 29

What factors are considered relevant to if there has been a breach of duty?

Answer 29

1) Usual or common practice
2) Likelihood of harm
3) Magnitude of harm
4) Practicality of precautions
5) Utility/potential benefit of D’s conduct
6) Sport
7) ‘State of Art’ defence
8) Breach is separate from an error of judgement

Question 30

Case for usual or common practice?

Answer 30

Re Herald of Free Enterprise 1987

Sailing with bow doors open was not usual, so it was negligent

Question 31

Case for likelihood of harm?

Answer 31

Bolton v Stone 1951

- Someone had only managed to hit a cricket ball that far 6 times in 30 years = very unlikely so no negligence

Question 32

Contrasting case to Bolton v Stone 1951 for likelihood of harm ?

Answer 32

Haley v London Electricity Board [1964]
- Precautions put in place round a hole for sighted people, but it was not unlikely enough that blind people would encounter harm

Question 33

Case for magnitude of harm?

Answer 33

Paris v Stepney Borough Council 1951
- C only had one good eye and this was known to his employers, but still they provided no safety googles and he was blinded completely. D knew C only had one good eye and should have provided goggles

Question 34

Case for practicality of precautions ?

Answer 34

Latimer v AEC [1953]

• D had laid down sawdust and taken other precautions to stop the floor being slippery
• The only way to prevent it would be to shut down the whole factory, not justifiable given the small risk of injury to C

Question 35

Case for potential benefit of D’s conduct?

Answer 35

Watt v Hertfordshire County Council [1954]

• Lifesaving equipment wasn’t properly secured to a fire engine, injuring a fireman
• Held no breach by employer as the risk was small and was with aim of saving human life

Question 36

Case that states where human life is at stake D may be justified in taking abnormal risks?

Answer 36

Watt v Hertfordshire County Council [1954]

Question 37

Cases for sporting events being taken into account?

Answer 37

Wooldridge v Sumner 1963
- More likely to take risks in the heat of the moment

Watson v Gray 1998
- Breach if reasonable participant would’ve known there is risk of serious injury

Blake v Galloway 2004
- Even if it is just horesplay, not organised sport, not liable unless reckless of high degree of carelessness

Question 38

What is the ‘state of art’ defence?

Answer 38

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 (recognising that the litigation process may take years – in which time accepted practice may well have changed).

Question 39

Case for ‘state of art’ as a defence?

Answer 39

Roe v Minister Of Health [1954]
- At the time of the operation (1947) the staff could not be expected to know of the dangers of storing glass ampoules in the phenol solution. 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).

Question 40

Case for distinguishing a breach from an error of judgement?

Answer 40

Whitehouse v Jordan [1980]

Question 41

Who was the judge in Whitehouse v Jordan [1980] - the case distinguishing a breach from an error of judgement?

Answer 41

Lord Fraser - If, on the other hand, it is an error that a man with ordinary care might have made, then it is not negligence.

Question 42

Which case states it is a balancing exercise between all the factors to decide if there has been a breach of duty?

Answer 42

The Wagon Mound (No 2) [1967]

Question 43

What happened in the Wagon Mound (No 2) [1967]?

Answer 43

defendant was transferring furnace oil onto a ship when it carelessly spilled some of that oil into the harbour water. Engineers working on nearby ships caused a spark which very unluckily fell onto the oil, igniting it. This led to a large fire and significant harm to the claimant’s ships. The court noted that it was very improbable that the oil would be ignited in this way (likelihood of harm), but the harm resulting if it was ignited could be very large (magnitude of harm), and it would have been easy to avoid the spillage (practicality of precautions). There was no wider or particularly clear benefit to the defendant’s conduct (benefit of the defendant’s conduct).
Accordingly, the defendant had fallen below the required standard of care.

Question 44

What is the Bolam Test?

Answer 44

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art… a doctor is not negligent

Question 45

Which case justified the Bolam Test?

Answer 45

Maynard v West Midlands RHA [1985]

- Lord Scarman

Question 46

What did Lord Scarman say in Maynard v West Midlands RHA [1985] to justify the Bolam Test?

Answer 46

“Differences of opinion exist, and continue to exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence.”

Question 47

Which case shows it will not always be enough to show professional practice is common place?

Answer 47

Bolitho v City and Hackney Health Authority [1997]

Question 48

What did Lord Browne-Wilkinson say in Bolitho [1997]?

Answer 48

In cases involving the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

Question 49

How was Bolitho qualified?

Answer 49

‘it will seldom be right for a judge to reach the conclusion that views held by a competent medical expert are unreasonable’.

Question 50

Previous caselaw for failure to advise in relation to risks?

Answer 50

Historically, the position was that if a surgeon’s decision not to warn of risks conformed with a responsible body of medical opinion which would not have warned of the risk, then the surgeon would not be liable for failing to warn of the risk
(Sidaway v Board of Governors of the Bethlem Royal Hospital [1984]).

Question 51

Which case departed from Sidaway about surgeons warning of risks?

Answer 51

Montgomery v Lanarkshire Health Board [2015]

Question 52

Where did the courts move on from in Montgomery v Lanarkshire Health Board [2015]

Answer 52

The doctor knows best approach