Tort Law Breach of duty
Terms in this set (30)
Breach of duty
1/ how the defendant ought to have behaved in the circumstances - what was the required standard of care in these circumstances?
2/ how the defendant did behave - did they (as a matter of fact) fall below the standard of care required?
Standard of care and some broad principles
1/ the objective standard of care/ the 'reasonable man'
2/ foreseeability of the risk
3/ magnitude/ seriousness of the injury
4/ practicality of precautions
5/ potential utility of Defendant's actions
6/ balancing act
1/ common practice and skill
2/ public bodies
The burden on the claimant to establish, on the balance of probabilities, that the d's actions fell below the required standard of care (except in road traffic accidents, D must show that he was not negligent)
Res Ipsa loquitor "the thing speaks for itself"
1/ the reasonable man and the 'objective' standard of care
- allows for some errors and mistakes
- what a reasonable man in the position of the defendant would have done in the circumstances
- "what level of care and skill did the activity the Defendant was undertaking require?" - Nettleship v Weston 
Nettleship v Weston 
The majority of the Court of Appeal held that all drivers, including those learning to drive, are held to the same standard.
 "the standard of care is measured objectively by the care to be expected of an experienced, skilled and careful driver"
The fact that the driver was by definition unable to meet this standard was irrelevant, but C's damages were reduced by 50% for contributory negligence
Roberts v Ramsbottom 
D had unknowingly suffered a stroke before starting to drive into town. Although he had realised his conscious was impaired, he was unaware that he was unfit to drive.
Held: standard fell below the objective standard of the reasonable man.
Mansfield v Weetabix Ltd 
Court of Appeal held that the defendant was not liable for the damage caused to a shop when the lorry he was driving crashed it.
As he had a medical condition, unknown to him. The defendant had therefore not fallen below the standard of care applied by the court, which was of a reasonably competent driver unaware that he is, suffering from a condition that impairs his ability to drive.
2/ Foreseeability of the risk
The general rule is that the more likely or foreseeable the outcome, the greater the possibility that the courts will find the defendant liable for failing to take steps to avoid it.
Roe v Ministry of Health 
conduct of the defendant is assessed at the time of the alleged breach- it is a test of foresight, not hindsight.
the two claimants had been giving anesthetic for minor operations. The anesthetic had been contaminated with a sterilising fluid during storage. this resulted in both claimants becoming permanently paralyzed. At the time it was not known that the anesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.
Held: there was no breach of duty. The risk was not foreseeable as it was an unknown risk at the time.
3/ Magnitude / seriousness of the risk
was it likely the injury would occur? general rule = the more likely/ foreseeable the outcome, the greater the possibility that the court will find the defendants liable for failing to take steps to avoid it.
Bolton v Stone (1951)
Claimant struck by a cricket ball when at a bus stop
Ball had been hit a long distance and cleared a wall
Had only happened on 6 occasions previously
Held no negligence on part of cricket club
Risk small and preventions generally adequate
Cost of prevention not justified
the remote possibility of injury is not enough, there must be sufficient probability to lead a reasonable man to anticipate it.
Perry v Harris 
involving the liability of a parent for the severe and permanent injuries sustained by a child using a bouncy castle hired for her children's birthday party.
Court of Appeal, finding for the defendant, held that in setting the standard of care, what mattered was not merely whether some harm was foreseeable but also the severity of the foreseeable harm.
 " we do not consider it that it was reasonably foreseeable that such an injury would be likely to be serious, let alone as severe as the injury sustained by the claimant."
Paris v Stepney Borough Council (1951)
Element: Breach of Duty
The duty owed to an already disabled person is generally greater, as the severity of an accident is that much worse for them. A greater duty is owed to a man blind in one eye to protect his other than to protect the eyes of people with two good eyes.
4/ Practicality of taking precautions
The lower the risk, the more reasonable it is that someone should take precautions
Latimer v AEC Ltd 
the claimant worked in the defendants factory and slipped up on the floor after a flood.
Held that the defendants had not been negligent and they had taken all reasonable precautions that could have been taken to minimise any possibility of risk to their employees. No breach of a duty of care and it was not reasonable to shut down the entire factory.
effect : employer only had to take steps to minimise the risk that a reasonable person would do in the circumstances
Overseas Tankship (UK) Ltd v Miller Steamship 
the d must have foreseen some injury when carelessly transferring furnace oil.
Held that the defendant was in breach, as despite the likelihood of the oil spilling had been low, the defendant had been aware that were such an event to happen, the harm that it could cause was very significant. Moreover, a reasonably professional person on the ship would have been able to tell that the risk of fire existed. further, the risk could have been easily mitigated at minimal cost to the defendant. Thus, the approach to establishing duties of care in tort requires consideration of both the extent and gravity of a possible injury.
5/ Potential utility of D's actions
i) the greater the social value of the activity, the more likely the courts will find it reasonable to have dispensed with safety precautions.
Watt v Hertfordshire County Council 
the standard of care will usually be lower where the d acted is acting in the heat of the moment or in an emergency or rescue situation
A fireman was seriously injured by heavy lifting gear while traveling in the back of a lorry on the way to an accident where a woman was trapped under a vehicle. The lorry had not been specially fitted to carry the gear in an emergency.
Court of Appeal, rejecting the fireman's claim, held that the public benefit justified taking the risks associated with failing to adequately secure the lifting gear in the back of the lorry.
 "the commercial end to make a profit is very different from the human end to save life or limb"
5/ the potential utility of D's actions
ii) in sporting events, the standard of care is usually lower as the participants are understood to be acting 'in the heat of the moment', concentrating on winning and so are likely to pay less attention to what is going on around them
Extends to 'horseplay'
Blake v Galloway 
Caldwell v Maguire 
Scout Association v Barnes 
Blake v Galloway : in the context of horseplay, there is a breach of the duty of care only where the d's conduct amounts to recklessness or a very high degree of carelessness. The defendant had consented to the risk of injury occurring within the conventions and understandings of the game.
Caldwell v Maguire : while the standard of care owed between participants in a sporting event is lower, it is never eliminated entirely.
Scout Association v Barnes : a game set up by teacher of finding objects in the dark. Whether the social benefit of activity was such that the degree of risk it entailed was acceptable was a question of fact, degree, and judgment, which had to be decided on an individual basis.
Court of Appeal held that the value of playing the game in the dark as a way of adding 'spice' to increase the boys' enjoyment of the game did not justify the additional risk.
5/ the potential utility of D's actions
iii) The Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015
The compensation Act 2006:
- was enacted to address the perception of a growing compensation culture in the UK.
- Tony Blair "This will send a strong signal and it will also reduce risk-averse behaviour by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers, and local authorities"
- Section 1: requires the courts to "have regard to" the wider impact of their easement of the appropriate standard of care in a particular case.
- effect: deterrent effect of potential liability (scouting, school trips, sports, games)
The Social Action, Responsibility and Heroism Act 2015:
works alongside the above. this act lists the matters- social action, responsibility and heroism, to which a court must have regard in determining a claim in negligence or breach of statutory duty.
6/ Balancing Act
When determining the standard of care required by the defendant, the courts are engaged in a balancing act. In each case, the courts weigh up the likelihood of the injury and the seriousness of harm against the cost of taking precautions and the social value of the activity before coming to a decision as to what was reasonable in all the circumstances of the case.
Overseas Tankship v Miller Steamship Company 
Privy Council held that although the chance of the oil catching fire was very low it was nevertheless a real one, and, given the very grave consequences should the risk materialise, there was no justification for the defendant's failure to take steps to eliminate it given how easy it was to prevent the spillage (had they taken reasonable care in the first place when filling up the vessel). On this basis, the defendants had fallen below the standard of care required - the reasonable man would have taken precautions
Orchard v Lee 
The standard of care is still objective, it is simply scaled according to age to that which can be "objectively expected of a child of that age"
Court of Appeal: held a child will only be liable in negligence if their conduct is careless to a very high degree or falls significantly outside the norm for a child of their age.
"Whether a reasonable 13-year old boy, in the situation that the defendant was in, would have anticipated that some significant personal injury would result from his actions.
2/Common Practice and skill
Phillips v William Whiteley 
Phillips v William Whiteley  the law requires that when dealing with people in the context of a calling or profession they do so with an appropriate level of competence.
ear-piercing is not something which requires a surgical level of skill and so the claimant could only expect that her ears were pierced to the standard and of a reasonably competent jeweler, which they had been in this case.
2/ Common Practice and skill
Typically a defendant cannot escape liability in negligence simply by arguing that they followed common practice
Exception: where d has a special skill or competence and the circumstances are such that they are required to exercise that skill or competence, the courts have developed a different approach.
Bolam v Friern Hospital Management Committee 
Bolam test: the actions of the defendant are judged against those of the ordinary skilled man professing to exercise that skill.
C was a patient who had been given electroconvulsive therapy without being given a relaxant during and without the appropriate physical restraints. As a result, he fractured his hip. the Defendant was not in breach of his duty, as other responsible doctors would have acted in the same way.
Bolam established that a doctor will not have fallen below the standard of care expected of a reasonable doctor if they acted in accordance with a respectable body of the medical profession (even if it is a minority viewpoint)
2/ Common Practice and skill
Bolitho v City and Hackney Health Authority 
House of Lords held as a reasonable body of opinion would have acted as the defendant did, she had not fallen below the standards of care required of her.
effect: 'doctors know best' only if he acts reasonably and logically and gets his facts rights.
1/ Has the doctor acted in accordance with a practice accepted as proper by a respectable body of medical opinion?
2/ if yes, is the practice itself 'reasonable' and 'logical'
Montgomery v Lanarkshire Health Board 
the Supreme Court rejected the application of Bolam test in cases involving the disclosure of risks in a medical context.
C had given birth, but as a result of complications during the birth, during which the baby was starved of oxygen, the baby was born with significant disabilities. Because she was small and diabetic, the risks of experimenting with mechanical problems during labor are higher. her doctor had accepted the high risk but in practice did not let women know as they would mostly ask for a cesarean section which is not in "the maternal interests".
issue: in failing to warn the claimant of the risk, the doctors were in breach of her duty of care towards the claimant.
held: patients have a right to make their own decisions and to be given a right to make their own decisions and to be given sufficient information to do so.
Doctors have a corresponding duty to take reasonable care to ensure that a patient is aware of material risks inherent in treatment, and of any alternatives.
3/ Public Authorities
it may be relevant to the issue of breach of duty when a public authority is sued that "resources available for the public services are limited and that allocation of resources is a matter for Parliament"
Knight v Home Office  
"Res ipsa loquitor"
"the thing speaks for itself"
ie if an accident has occurred of a kind that usually only happens if someone has been negligent, and the state of affairs that produced the accident was under the control of the defendant, it may be presumed in the absence of evidence to the contrary, that the accident as caused by the defendant's negligence.
1/ if the d needs to have control of the thing that caused the injury
2/ the accident must be such as 'in the ordinary course of things, does not happen if those who have the management of the things use proper care'
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