Tort A - Breach of Duty

Once a defendant has been established to owe a duty of care, the defendant must be shown to have BREACHED that duty. 

A defendant breaches their duty when the defendant's conduct has FALLEN BELOW THE STANDARD OF CARE required in all circumstances. 

The standard set by the law is one of REASONABLENESS. It is flexible to accommodate the infinite variety of cases that it will encounter. 

It was decided that negligence is the omission to do something which a REASONABLE MAN guided upon those considerations ordinarily regulated the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. 

It is therefore an OBJECTIVE STANDARD OF THE REASONABLE PERSON. 

It is not what COULD have been done but what OUGHT TO HAVE BEEN done. It is NOT a standard of perfection, only one of REASONABLE CARE. The standard does not always reflect average behaviour - a defendant who is unusually clumsy or absent-minded cannot succeed by arguing that his or her conduct amounts to an incompetent best. 

THE DEFENDANT WILL BE JUDGED ACCORDING TO THE BEST EFFORTS OF THE HYPOTHETICAL REASONABLE PERSON.

The manageress of the defendant's tea-rooom to which access was obtained by a small shop gave a picnic party permission to use the tea-room when it was raining. Despite taking all due care, one of the carriers let go of an urn so that tea was spilt, severely scalding several children. The plaintiff argued that the manageress had been negligent in giving them permission to bring in the urn without clearing the children out of the shiop, but it was held that the defendants were not liable because the risk of injury was not so high that the reasonable person would have done this in the circumstances. 

The reasonable man is presumed to be neither over-apprehensive nor overly confident. 

The law will adapt the standard of care to take account of external circumstances, but not the DEFENDANT'S PERSONAL CHARACTERISTICS. 

The defendant was a learner driver. The plaintiff, as a family friend, agreed to give her driving lessons. On her third lesson, the defendant was steering, but panicked and struck a lamppost, and the plaintiff suffered a broken knee cap. He sued the defendant for personal injury and the defendant was held liable. 

It was held that her conduct was not to be judged by the standard of A LEARNER DRIVER, but instead the standard of the REASONABLY COMPETENT AND EXPERIENCED DRIVER. Although not morally at fault, she was legally at fault. 

If the law was able to vary the standard according to the experience of the defendant then it would be impossible to confine the application of the principle to cases of driving. The court would be obliged to hear evidence about the level of competence which would be costly and time-consuming, and would produce unpredictability and uncertainty in the law. 

The standard of care is HYPOTHETICAL not AVERAGE. Sometimes the reasonable person may be accredited with a high level of skill and prudence if necessary. There can be little regard for actual fault. 

FORESEEABILITY OF HARM

If the particular harm that the claimant suffers is not foreseeable, the defendant will not be liable. The reasonable person cannot be expected to take any precautions against unforeseeable risks. 

In this case the plaintiff went to hospital for a minor operation and suffered permanent paralysis due to spinal aesthetic which was contaminated. It was not known that the contamination could have occured when the claimant was injured, but in 1954 it was known due to scientific advances. The defendants were not held liable because the risks were not foreseeable.

THE MAGNITUDE OF THE RISK

The reasonable person does not take precautions that are small. There must be some likelihood that harm will occur. There is also the question of how serious the consequences will be if the harm occurs. The NATURE and GRAVITY of the damage foreseeable, LIKELIHOOD OF OCCURENCE, EASY OR DIFFICULTY OF ELIMINATING RISK...taken into account when deciding a duty of care. 

The plaintiff was standing outside her house when she was hit by a cricket ball coming from a nearby cricket ground. It was clear the the defendant cricketers could have foreseen that the ball might be hit outside the ground before but it was a rare occurrence, only happening 6 times in 30 years. There was a fence round the perimeter. It was held that, in the circumstances, the chance of an injury occuring to someone standing where the plaintiff was was so slight that the defendants were not negligent in continuing to play cricket without taking additional precautions. 

AN ORDINARY CAREFUL MAN DOES NOT TAKE PRECAUTIONS AGAINST EVERY FORESEEABLE RISK. Take more care handling dynamite than butter. 

The defendants were occupiers of grassland on which they permitted small boys to play football. The ball was kicked over a low wall onto a road where the plaintiff fell off his bike and suffered fatal injuries. They were held liable due to the fact that a reasonable person would not have disregarded the risk as the road was so close to the grassland. 

The plaintiff was blind and fell into a hole in the pavement dug by the defendants. As a result of his fall he became deaf. Precautions to guard the hole were sufficient for sighted people but not the blind, and statistical evidence showed that there was a higher proportion of blind people living in the same London borough as the plaintiff, and so the likelihood of a blind person falling into the hole was not so small that the defendants could ignore it. 

The reasonable person must tailor their conduct in light of the circumstances and who it may affect. Magnitude of the risk. 

Even if there is a small risk, as in Bolton v Stone, if the consequences are more serious, the defendant may have greater obligations to prevent it.

In this case, the plaintiff was blind in one eye and employed by the defendants in a garage. He was dismantling a chassis and had to use a hammer. A fragment of metal came off the bolt and hit him in the eye causing total blindness. The specific risk was incredibly small and did not justify the use of goggles by ordinary workers, but it was held that the defendants were liable for not providing this particular worker with goggles, knowing the seriousness of the consequences if the small risk materialised. 

A police officer went to a crowd, saw his girlfriend with another man, fired his gun but hit someone else who claimed the police had been negligent in allowing him to have a gun. Because the man had previously shown his unstable character, there should have been more precautions taken and the claim succeeded. 

THE BURDEN OF TAKING PRECAUTIONS

The court will take into account the cost and practicablity of taking precautions against a risk. If taking the steps is a great burden it will not be expected. Bolton v Stone - would have involved building a very high fence. 

In this case the floor of the defendant's factory was flooded in a very heavy rainstorm. An oily cooling mixture normally contained in a channel mixed with floodwaters making the floor very slippery. The defendants spread sawdust but didn't have enough, and the claimant slipped injuring his ankle. The defendants were held not to have been negligent as they had done all that reasonable employers could be expected to do for the safety of their workers. If they wanted to eliminate risk they would have to have shut down the factory, which would have been disproportionate to the risk in question.

The defendants negligently discharged oil into the sea near Sydney Harbour. There was an extremely small risk that the oil might ignite, but this is what happened causing damage to the plaintiff's ships. The defendants argued that the risk was so small that they were justified in disregarding it. It was held that the burden of eliminating the risk was minimal and that it was nonetheless a real risk and the defendants had been negligent in not guarding against that risk. They were held liable for not regarding the risk. 

The argument that the standard to be expected of the Red Cross in testing blood donations should be determined in light of the financial constraints upon the charity. They should not have done the blood collections if they could not be done properly. They chose to provide the service. Their lack of resources was not an excuse for failing to reach the appropriate standard of care.

A man was able, IN LIGHT OF HIS RESOURCES, to put out a fire started on his land, and was held liable for not doing so. He was expected to make use of the resources readily available to him. 

Prison authorities were held not to be negligent for failing to provide the same level fo care for prisoners suffering from psychiatric illness as that which would be expected in a psychiatric hopital. There were however limits to this approach. Lack of financial resources could not operate as a complete defence. 

Eg, a prison would not get away with not providing any medical resources

THE GREATER THE SOCIAL UTILITY OF THE DEFENDANT'S CONDUCT THE LESS LIKELY THAT THE DEFENDANT WILL BE HELD NEGLIGENT:

During WWII a driver had been negligent in not giving a hand signal when turning, but she was held not to be liable, as she was carrying out an important function - social utility had to be weighed against risk. All vehicles were needed and the fact that she couldn't physically indicate right should not prevent her from driving the vehicle. 

THE GREATER THE SOCIAL UTILITY OF THE DEFENDANT'S CONDUCT THE LESS LIKELY THAT THE DEFENDANT WILL BE HELD NEGLIGENT:

During WWII a driver had been negligent in not giving a hand signal when turning, but she was held not to be liable, as she was carrying out an important function - social utility had to be weighed against risk. All vehicles were needed and the fact that she couldn't physically indicate right should not prevent her from driving the vehicle. 

The plaintiff was a fireman who was injured when travelling to rescue a woman reportedly trapped under a heavy lorry. The plaintiffs colleagues picked up a jack needed in a rush, and the plaintiff was injured when the jack hit him after sudden braking. The defendant's employers were not held to be negligent because the need to act speedily to save the woman's life outweighed the risk ot the claimant. 

The local authority owned and managed a lake for the benefit of the public. Most visitors used the site responsibly enjoying the beaches and respecting signs prohibiting swimming. But the council became aware of swimmers, and resolved to destroy the beaches. The work was yet to commence when a young man severely injured himself diving into the lake hitting his head on the bottom. 

The House of Lords denied that claim, reasoning that the authority should not owe a duty to people who disobeyed signs. There could be no duty to protect people from their own irresponsible behaviour especially where it would destroy a desirable public amenity. There were fears that the UK was becoming a compensatory culture. 

A failure to conform to a common practice is strong evidence of negligence. It suggests that the defendant did not do what others in the community regard as reasonable. 

However, this is not always decisive.

The plaintiff in this case contracted dermititis from contact with grease. They claimed there was negligence in not supplying barrier cream which is commonly supplied to other people doing similar work. There was no evidence of the cream's efficacy however, and the claimant's action failed because she could not prove that if the defendants had had the cream it would have prevented her from contracting dermatitis. 

Where it can be shown that the defendant has complied with a common practice in relation to safety precautions, this is generally very good evidence that the defendant has not been negligent. 

In this case a doctor was called to attend a 2 year old suffering breathing difficulties. He did not attend and the child died. The process of intubation may have saved the child's life, but it could not be proved that the doctor would have intubated the child and so he was not held liable. 

If a STATUTE applies and the defendant complies with the statute does this mean they escape liability? As with COMMON PRACTICE, it is NOT DECISIVE, but is HIGHLY RELEVANT. 

Generally, compliance with a statute will suffice:

In this case the claimant was poisoned by lead in petrol. The amount of lead in the petrol complied with the maximum permitted according to regulations, and it was held that BP could not have been negligent when they had complied with specific statutory regulations. 

However, even if there is statutory compliance, this does not necessarily preclude a duty of care from existing:

In this case a motorcycle was caught in tram tracks. The tracks complied with statutory standard, but it was held that there was no negligence in spite of this. 

Some defendants have special rules applied to determine the standard of care required of them. The conduct of a child defendant is judged by reference to the standard of conduct that can be expected of a reasonable child of the defendant's own age. It is rare for children to be sued as they are not worth sueing. Parents are only personally negligent and can be sued if they assumed responsibility for the child's actions.

In this case the defendant and the claimant were 15 year old schoolgirls who were fencing with plastic rulers. One of the rulers snapped and a piece of plastic flew into the plaintiff's eye causing blindness. It was held that the proper test to apply was whether an ordinary careful and reasonable 15 year old would have foreseen that the game carried a risk of injury. On the facts, the injury was held not to be reasonbly foreseeable by the child as the game was common and they had not been warned it was dangerous.

Two 15 year old boys were throwing bark at each other and one was blinded. The thrower was not liable for causing the injury. 

There is an objective standard applied for the reasonable child. But it is different from the one expected of adults. 

Those engaged in sport owe a duty of care both to other competitors and to spectators. However, decisions are made in the heat of the  moment and the required standard of care takes this into account. Only liable if reasonable sporting man would not have done the same. 

The defendant was a participant in a motorcycle scramble, and was held not to be negligent when his bike left the course and hit a spectator. The standard of care was adjusted to take into account the fact that the competitor could reasonable be expected to go all out to win even exposing others to risk. But a competitor may not expose others to foolhardiness. 

Where referees put competitors at risk by failing to enforce the rules of the game, they may be liable where they cause injury. 

In this case a rugby referee was held liable when a player was injured by a scrummage collapsing in circumstances where the referee should not have allowed the game to continue after a substitution of an untrained player. 

The threshold for a referee is a high one though, as the standard expected of referees depends on the case. In a fast-moving game, errors of judgment can be made. It would depend on the grade of the referee, the level of the game in question etc. Don't want to put amateurs off becoming refereees.

IT WILL BE NEGLIGENCE IF THE PERSON EMBARKS ON AN ACTIVITY THEY SHOULDN'T HAVE BEEN ATTEMPTING, SUCH AS A BLIND PERSON TRYING TO DRIVE. They would be negligent in attempting to start the activity. 

In this case, the man had no reason to doubt his fitness to drive, but suddenly had a heart attack. It was held that there was no negligence in the following accident. Depends on susceptibility

The defendant was suffering from the onset of a slowly advancing stroke. He suffered from clouded consciosness. He was held not to be negligent in driving because he didn't realise this. He had 4 accidents in one journey but continued to drive, then hit the car with the plaintiff. According to the trial judg the defendant could not escape liability for his actions due to the importance of autonomism. Driving is judged objectively, and he was below the standard of the reasonable driver. However, if driving automatically with no voluntary conduct, this means there is a lack of autonomy and therefore you cannot meet the standard of the reasonable driver. 

AUTONOMOUS VERSUS AUTOMATISM. 

If driving with no voluntary conduct, lack of autonomy, cannot meet standard of reasonable driver. 

Uncle suffering paranoid schizophrenia, threatened to set himself on fire. The claimant nephew tried to stop him, suffering serious burns. The uncle was liable to the nephew as he had not measured up to the reasonable standard. 

NOT AUTOMATISM, SUCH AS SLEEPWALKING, WHICH WOULD RENDER NO LIABILITY. IF THERE IS AUTONOMY, OR A DEGREE OF AUTONOMISM, THEY MUST MEET THE STANDARD OF THE REASONABLE PERSON. 

A Weetabix lorry driver suffered a hypoglycaemic attack whilst driving, starving his brain of glucose, he couldn't function properly and crashed into the claimant's shop. Were Weetabix liable? 

THE DISABLING EVENT CAN BE SUDDEN OR GRADUAL, BUT PROVIDED THE DRIVER IS UNAWARE OF IT, THEN THE STANDARD EXPECTED IS THAT OF A REASONABLY COMPETENT DRIVER UNAWARE OF THEIR DISABLIND CONDITION. 

In this case, he could not have reasonably known about his condition and was therefore not blamworthy. 

In this case the defendant believed he was escaping from murderers and drove through a red light injuring the claimant. The defendant was still capable of driving, and should therefore have care for others on the road. He had acted as an incompetent driver and there was no allowances made for illusions. He was therefore held liable. 

If the plaintiff has knowledge of the defendant's incapacity this does not affect the standard of care, but instead may be a defence of contributory negligence. Standard of care remains the same. 

WHERE THE DEFENDANT IS FORCED TO ACT QUICKLY IN THE HEAT OF THE MOMENT OR IN AN EMERGENCY, THE STANDARD OF CARE IS RELAXED TO TAKE ACOUNT OF THE SITUATION. 

In this case, a passenger on a coach thinking it was about to overturn broke his leg jumping off. It was decided that he was not guilty of negligence because he had selected the more perilous  of two alternatives when confronted with an emergency. He was successful in sueing. 

The police were chasing a suspected criminal, and this counted as an emergency situation. 

NON-DELEGABLE DUTY. If you engage an independent contractor, you have taken reasonable care asking someone to do a job and you then cannot be liable if something happens. However, in some cases you may need to be sure a third party has taken care. If the contractor is negligent you may still be liable in relation to that activity - cannot delegate the duty of care- non-delegable duty. This is EXCEPTIONAL. 

In this case the defendant delegated to a third party swimming lessons in school. A child suffered an accident and got brain damage. The local education authority was held liable as they had assumed responsibility for the child and it was a non-delegable duty of care, especially in an extra-hazardous activity. 

What is the standard of care expected of people following a particular trade or profession or who hold themselves out as having special skills?

WHERRE THE DEFENDANT PURPORTS TO HAVE SPECIAL SKILLS, THE DEFENDANT'S CONDUCT IS JUDGED ACCORDING TO THE STANDARD OF A REASONABLE PERSON HAVING THE SKILL THE DEFENDANT CLAIMS TO POSSESS. IT IS NOT THE STANDARD OF THE REASONABLE PERSON. 

The law will not regard a professional defendant as having fallen below the required standard of care if it is shown that the defendant's conduct is regarded as PROPER BY ONE RESPONSIBLE BODY OF PROFESSIONAL OPINION. Even if some of the profession regard the action as negligent. 

It is not a question of whether or not the defendant is IN FACT  member of the trade or profession, but whether they HELD THEMSELVES OUT TO BE POSSESSING A TRADE OR SKILL. 

An ear piercer at a jewellers was not held to have the same degree of care and skill as a qualified surgeon.

The standard of care to be expected from a professionally qualified defendant was to be determined by considering the nature of his or her post and the tasks involved. A junior doctor filling a post was regarded by the same standards as a senior doctor. But if the inexperienceddoctor asks for advice, they are able to discharge the duty of care.

A professional can, in some circumstances, discharge the duty of care by simply refusing to act. Depending on the circumstances. Junior doctor cannot decline expertise surgery but a GP could.

A herbal remedies expert prescribed herbal medicines to treat a patient but they suffered liver failure and died. They were not held to be in breach of a duty of care because they did not hold themselves out to be expert orthodox doctors. They were only liable to the skill appropriate by their sepcific art, but they should have referred him to an official medical procedure. 

Mr Bolam was a mental patient suffering acute depression. Accepted forms of treatment was to administer electro-convulsive therapy. A side-effect was muscle spasms which caused Bolam to suffer a fractured pelvis. The foctor was held to have acted in a manner accepted as proper by medical professionals, and he therefore was not negligent. 

A two year old boy was admitted to hospital suffering breathing difficulties, and suffered cardiac arrest leading to brain damage. The mother brought a negligence action arguing the doctor should have intubated the child. Some professionals said he should have done, others said not. The trial judge held him not liable and this was confirmed by the House of Lords as professional opinion was not unanimous. 

The plaintiff suffering pain was advised to have an opeartion on her spine by surgeon, but did not warn of risk of damage to spine which was small. There was no negligence in the operation but she was left disabled, and claimed the surgeon had been negligent not to tell her of the risk, as if she had known she would not agreed to the operation. The House of Lords held the surgeon was not liable as the surgeon had conformed to a responsible body of medical opinion who would not have disclosed the risk. 

Just because the defendant has conformed to common practice, this does not mean they have met the standard of care necessarily. 

It is up for doctors to decide whether and how much information to reveal to a patient having regard to the interests of the patient. In a case where a doctor was specifically questioned by the patient, they would be obliged to respond truthfully and fully. 

The claimant was considering a spinal operation and specifically asked her consultant about the risks inherent in the operation. The defendant was held to be in breach of duty when he gave a light-hearted reply that he had not crippled anyone yet instead of explaining that the operation carried an inherent risk