Breach of Duty

What is the standard?

Proof that the harm caused would be done by a REASONABLE PERSON.

Which case was the standard decided in?

Vaughan v Menlove 1837

Who is the reasonable person?

The reasonable person is the ordinary person doing to task competently. (Wells v Cooper 1958)

Special characteristics

There are a number of variation of the “reasonable man” and the court may consider whether D has a special characteristic.

What is the standard learners are expected to reach?

A learner driver is expected to meet the same qualified standard as a reasonable qualified and competent driver.

Nettleship v Weston 1971

A learner driver (Weston) crashed into a lamp post inuring her instructor. Nettleship was her neighbour and not a professional driving instructor.

Ratio: the defendant was liable as learners are held to the same standard as reasonable qualified competent driver.

What standard is expected of children?

Children are judged by the standard of other children their age.

Mullin v Richards 1998

Two 15 year old girls have a fight with plastic rulers. A rule snapped and fragments went in Mullin’s eye. She lost sight in her eye.

Ratio: She was only expected to meet the standard of a reasonable child of that age (15). She was not found to be in breach of duty.

What is the standard expected of professionals?

The standard for experts is that of a competent expert skilled in that particular art. It is not negligent if another expert would have done the same.

Bolam v Friern Barnet Hospital Management Committee 1957

The defendant was the body who employed a doctor who had not given a mentally ill patient muscle relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them nor giving them the drug.

Ratio: No breach of duty as it was decided that other doctors would do the same.

Two part test established from Bolam

• Does the defendants conduct fall below the standard of the ordinary, competent member of that profession?

• Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?

If the answer to the first question is ‘no’ and to the second is ‘yes’, then the defendant has not broken their duty of care.

The importance of Bolitho v City and Hackney Health Authority 1997

The House of Lords suggested that the court should decide what standard of care applies in each case, rather than considering professional opinion as a whole.

Montgomery v Lanarkshire Health Board 2015

This case changed the Bolam Test in medical negligence by introducing the general duty to attempt the disclosure of risk.

Risk factors

When the court considers whether there has been a breach of duty, it will take into account certain factors to decide whether the standard of care should be raised or lowered.

Size of the risk

Magnitude of Harm

Practicality of taking precautions

Potential benefits of risky activity

Special characteristics

Has the claimant got any special characteristics which should be taken into account?

A higher standard of care will be required if the claimant has special characteristics which should be considered.

Paris v Stephny BC (1951)

The magnitude of potential harm was greater for Paris (since he was already blind in one eye) so more precautions should have been taken. The cost and effort of providing goggles was very small compared to the magnitude of the risk.

What is the size of the risk? - 1

The bigger the risk to the claimant, the higher standard of care required.

Bolton v Stone (1951)

There was no breach of duty as there was a low risk and therefore a low liklihood of harm as only 6 balls had been hit out of the ground in the last 30 years.

What is the size of the risk? - 2

Haley v London Electricity Board (1965)

There was a breach of duty as there was a high risk of harm which was known to the defendants. They also knew that a large number of blind people walked unaided down that street.

Have all appropriate precautions been taken?

The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk.

Latimer v AEC Ltd (1953)

Defendant only had to take reasonable precautions to minimise the risk. There was no duty of to close the factory, because this was not proportionate to the risk.

Were the risks known about at the time of the accident? (scientific)

Where the reasonable man would not know that a standard procedure is in fact dangerous, he will not break the DOC- the reasonable man cannot b expected to know and protect against the risks of harm that are not scientifically known.

Roe v Minister of Health (1954)

The duty owed by the hospital to the patient was not broken as the hospital could not have known prior that mixing traces of anti-septic and anaesthetic would have resulted in permanent paralysis.

Is there a public benefit to taking the risk? - 1

This is the idea that there is a lower standard of care when reaching an emergency

Watt v Hertfordshire CC (1954)

The emergency of the situation and utility of the defendants conduct in saving a life outweighed the need to take precautions. So, there was no breach of duty as public benefit wins.

Is there a public benefit to taking the risk? - 2

Day v High Performance Sports (2003)

No duty of care was breached because the emergency of the situation had overridden the need to take necessary precautions.