Breach of Duty and the Standard of Care in Negligence - Lecture 8 - Tort Law

Blythe v Birmingham Waterworks Co defines the objective standard of ‘negligence’ (breach of duty), what does it outline and what does this mean? What standard do we assess the person on, and is there neutrality or is it based on moral, subjective approach?

‘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.’

• Our basic objective standard is the 'reasonable person' standard, assessed by what the reasonable person would have done in the circumstances

• This means that they must give up the standard of reasonable care, failure to live up the standard can be things the defendant did or did not do

• The reasonable test isnt about carefulness. We arent making a moral judgement but implying a certain level of standard of care. The reasonable person is neutral, removed from the personal perspective of the parties.

Nettleship v Weston also reinforces what is meant by the objective standard of ‘negligence’ (or breach of duty), what is the context and outcome? And controversies with the case?

Context → D was learning how to drive and Plaintiff was D's driving instructor, D was driving too close to the pavement and P told her to stop, D then pressed the accelator instead of stopping, so P was injured due to the crash of accelerating.

Outcome → The court said D should be assessed by the reasonable driver, their PERSONAL competent capabilities and driving abilities ISNT good enough because it would be a subjective standard then

Controversy →

• The idea that the driver must fulfill the standard of a reasonable competent driver which is an impossible standard which people can reach consistently, and risks of accidents can occur, so the compulsory insurance enables tort negligence doctrine = Everyone is subject the same objective standard as per the reasonable compotent driver test / objective reasonable person test

Dunnage v Randal on the relevance of personal characteristics of the defendant, what is the context and outcome? (in regards to mental and physical health)

Context → D has schizopheria, setting fire to himself and C tried to stop him, D died and C was seriously injured. C sued D's estate.

Outcome → The court explicitly took the same approach to mental and physical illness, they are not relevant to assessing the standard of care owed by the defendant - there is no need to reflect the mind of the defendent.

Importance → The general rule is that we do not take into account the personal characteristics of the defendant, it is an objective, reasonable person test - especially when it comes to mental and physical health.

Mansfield v Weetabix Ltd on the relevance of personal characteristics of the defendant, what is the context and outcome? (in regards to involuntariness)

Context → D's driver drives into a shop, the driver unknown to him was in a hypogycimic state and D didnt know he suffered from that, the condition making him unable to make less judgements without being aware of it.

Outcome → CA outlined that the standard here would be a reasonable competent driiver who is UNAWARE of their condition - given he didnt know about his condition, he wouldnt be held liable.

Summary → They are held to the objective, reasonable person test and the only situation where you don’t apply a reasonable person test, if you can properly say the D himself didn’t do anything.

Barnett v Chelsea and Kensington Hospital Management Committee on the relevance of personal characteristics of the defendant, what is the context and outcome? (in regards to temporary indisposition)

Context → Security guard went to hospital, complaining about throwing up after taking tea and the nurse asked the doctor, the doctor advised that the guard go home and to be seen by his gp the day after. The guard had died due to arsenic poisoning,

Outcome → Even if the doctor was tired after making the decision, we cannot take into account the temporary indisposition of the doctor, it is focused on the reasonable objective person test.

Mullin v Richards on the relevance of personal characteristics of the defendant, what is the context, outcome and importance? (in regards to age)

Context → Two 15 year old girls are fencing with rulers, the ruler shattered and one went into the girls eye.

Importance → The age was important when assessing the standard of reasonable, objective person.

Outcome → The court concluded the focus should be what the ordinary, prudent 15 year old school girl would have done in the situation.

Philips v Whiteley on the relevance of personal characteristics of the defendant, what is the context and outcome? (in regards to skills)

Importance → The special skills of the D is included in the personal characteristics.

Context → The jeweller had pierced someone's ear and the person got an infection.

Outcome → The court said a jeweller's standard of hygiene will be DIFFERENT from a doctor

Woolridge v Sumner on the ‘relevance of context’ in relation to breach of duty, what is the context and outcome?

Context → The rider and horse went off the course, running into spectators

Outcome → The court concluded not only reasonable partiicpants and spectators expect it to be fast-moving and competiton and NOT the spectators. The fast moving, competitive context means that a LAPSE of judgement is allowed, but not a blatant disregard for the safety of the spectatiors.

Clarke v Elbanna on the ‘relevance of context’ in relation to breach of duty, what is the context, outcome and importance?

Context → They were injuries in rugby. D ran straight at C from behind, C didn't have the ball so it was a breach of walls in rugby, C suffered serious spinal injuries.

Outcome → The court argued that fact that the mere rules of the game have breached, it doesn’t mean itself that you have breached the duty of care in negligence.

Importance → The CA said recklessness is not necessary to establish breach of duty, but recklessness incoperates duty of care, so the fact that they found recklessness SUFFICES = we take into account the context D and C found themselves in.

Blake v Galloway on the ‘relevance of context’ in relation to breach of duty, what is the context and outcome?

Context → Teenage boys throw tree bark at each others which goes into P's eye.

Outcome → The court relies on sporting cases that we need something more than a lapse of skill for there to be a breach of duty of care.

Perry v Harry on the ‘relevance of context’ in relation to breach of duty, what is the context and outcome?

Context → Parents had hired a bouncy castle for a child's birthday party and another child was seriously injured.

Outcome → In this case, the context mattered since it is the standard of a reasonable parent, not a reasonable professional or operator of the bouncy castle as the operator wouldve stopped it through restricting people or responding to injuries and the parents wouldnt have been able to do so.

Ellis v Kelly on the ‘relevance of context’ in relation to breach of duty, what is the context and outcome?

Context → The child was allowed to walk to a park with his cousins with his mum's permission. The child wandered away, ran over by a car, being seriously injured.

Outcome → The car was driving too quickly, a reasonable person wouldnt be driving that quickly as per a breach of duty of care. The driver's insurers argued the child's mother was also at fault and should bear liability, the court rejected this as it would be imposing a far too high standard on parents in the course of parenting on how to keep her child reasonably safe whilst allowing them freedoms - we need to assess it according the standard of a reasonable parent.

Roe v Minister of Health on the ‘timing’ in relation to breach of duty, what is the context and outcome?

Context → R was paralysed due to anathetsic being injected. The anaesthetic was stored incorrectly and no one knew at the time, hence this case then realised that this could happen scientifically.

Outcome → The court said we set the standard of care what the reasonable anathestist knew at the time and not look at a 1954 case with the perspective/view of 1960s and not with the knowledge you have brought into court as the knowledge wasnt known at the time.

Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church on the ‘timing’ in relation to breach of duty, what is the context and outcome?

Context → This is a case regarding child sexual abuse by employers.

Outcome → The court outlined the standard which was what a reasonable priest would have done about allegation of sexual abuse of a boy by another priest in 1974 with that said allegation? You judge it by the standard of the times, in 1974, the reasonable person wouldnt have come to the police with the allegation but a reasonable person would have stopped the priest from seeing the boys in his room and it was unforgivable in 1974 to dismiss the boys allegations or reducing it as 'silly'.

Bolam v Friern Hospital Management Committee on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (medical professionals)

Context → Patient (B) had electric shock therapy, then got broken bones.

Issue → The queston was whether the patient should have been give medicine to help mitigate the prospect of broken bones during electric shock theraphy?

Outcome → In this case, there was no negligence even with the bolam test and it would be unusual to find doctors would breach duty of care because theyre relying on a body of opinion that is not responsible

Importance → This case created the subsequent Bolam Test which acts as a threshold for medical professionals in terms of breach of duty, outlining “Did the medical professional act ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?”

Bolam v Friern Hospital Management Committee created the Bolam Test which was a test specifically for medical professionals to identify whether there is a breach of duty, what does the Bolam Test outline? And what does the Bolam Test mean?

The Bolam test outlines ‘Did the medical professional act ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?’

The methods used was approved by responsible portion of medical profession.

The bolam test doesn’t mean the doctor automatically wins just because they satisifed the following and other doctors would have dome the same.

The body of opinion must be responsible which is the emphasism they must demonstrate that the opinion has a logical basis and where the choice of treatment involves weighing up risks and benefits, the experts have to direct their minds specifically to that.

Bolitho v City and Hackney HA on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (medical professionals)

Context → Doctor (D) failed to attend to a child with acute respiratory difficulties after repeated episodes, the child suffered respiratory failure leading to brain damage and died later. The child's mother (C) sued for negligence against the Health Authority that employed the doctor. Counsel for D argued that even if the doctor attended to the child, he would not have intubated him.

Outcome → The trial judge held that there while the doctor for negligent for failing to attend to the child, it was not negligent for intubation not to be carried out under the Bolam test and thus D was not liable.

Importance → The Bolam test can be ignored by the court if the judge finds that the professional opinion does not have a logical basis.

Montgomery v Lanarkshire Health Board focuses on ‘informed consent’ within professional and industry standards influencing breach of duty, what is the context, outcome and importance? (medical professionals)

Context → Failure to provide a woman with information on risks of vaginal delivery of a child in the circumstances that she was in.

What this tells us about Bolam Test? → The case tells us the skill and judgement on deciding whether to warn a patient on the risks is not of the kind which Bolam is concerned - the correct approach in regards negligence on risk of injury is that the doctor is under a duty to take reasonable care to ensure that the partient is aware of material risks and alternative treatments and alternatively, test of materiality is assessed by what a reasonable person in the patients position would think and where the doctor shoudl be aware the particular patient attaches significance to the risk - reasonable doctor when informing the patient, tells the patient what the reasonably would want to know.

Importance → We assess materality in perspective of the patient, we're emphasising the reasonable patient, no reasonable specialist/doctor.

The decision whether to disclose medical risk to patients is not within the scope of the Bolam principle, which states that only where the risk was such that no responsible body of medical opinion would have supported the withholding of advice that failure to offer it would be negligent. Instead, doctors are under a general duty to disclose all risks that a reasonable person or a reasonable doctor would think that a patient would consider to be significant. (Montgomery Test)

McCulloch v Forth Valley Health Board focuses on ‘alternative treatment’ within professional and industry standards influencing breach of duty, what is the context, issue, outcome and commentary? (medical professionals)

Context → This case is about alternative treatments.

Issue → Whether there is a negligence to discuss alternative treatments with the patient?

Outcome → The court concluded that we rely on Bolam rule, it is about what the reasonable patient thinks is reasonable. What would a reasonable patient ought to know is different to, if we know what reasonable alternative treatments is determined by the Bolam Test or Montgomery Test?

• We apply the Bolam test in relation to reasonableness of alternative treatments, since it is an exercise of clinical judgement

Commentary → McCullcoch case describes Montgomery as limited. Mcculloch shifted the approach in Montgomery - less patient autonomy and there is a focus on clinical.

Wilsher v Essex Area Health Authority focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (medical professionals)

Outcome → A juninor doctor cannot be held to the same standard as a consultant and the court said that they don't take inexperience into account, but they think about the post, so post can be taken into account - such as what a reasonable nurse, doctor or consultant too.

Darnley v Croydon Health Services Trust focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (medical professionals)

Outcome → The court stated the standard of care the receptionist is held includes the context of what a reasonable person would be in this very busy, chaotic environment and what is expected of someone in that post - not a medical professional but receptionsit - the court said you can have a receptionist who gives the statement and not a medical professional, but a reasonable receptionist would not have treated the person like that.

Phelps v Hillingdon BC focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (OTHER PROFESSIONALS)

Context → The educational psychiatrist failed to diagnose dyslexia.

Outcome → The court emphasised the breach stage of enquiry can be a good place to avoid too much liability, the court said they would apply Bolam in case of educational psychiatrists diagnosing children and what a reasonable person will do will be reflected on the difficulty of these decision, it wont engage in choosing sides of medical thoughts, but it has to be a professional opinion had done what the defendant did.

Edward Wong Finance v Johnson Stokes & Master focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (OTHER PROFESSIONALS)

Context → Legal professionals in Hong Kong used a particular method of conveyancing that it wouldn’t be done in the UK.

Outcome → The court concluded that there was a breach of duty of care even if the practise was universally followed in hong kong - even if someone is practising generally, it could be a breach and it was concerns that the hong kong method of conyenacing would lead to be money being stolen in the UK and being unsafe.

The Wagon Mound focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (OTHER EXTERNALLY DEFINED STANDARDS - INDUSTRIAL, STATUTORY, ETC)

Outcome → Lawfulness and legality can be considered regarding what the reasonable person would have done (such as D committing an offence).

Thompson v Smiths Shiprepairers focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (OTHER EXTERNALLY DEFINED STANDARDS - INDUSTRIAL, STATUTORY, ETC)

Context → They lost their hearing due to exposure to noise whilst working in shipyards

Outcome → The court said deafness was considered an inescapable fact of life for shipyard workers before the 1970s, the court said the standard of care is the reasonable and prudent employer taking into account the safety of their workers. in the 1970s, there was no breach as deafness was not thought as a risk and no one is taking care of the employee's hearing and what point does a change in social awareness and innovation does doing nothing become unreasonable in tort?

Importance → Everyone is doing the same thing, but at certain point, scientific knowledge and attitudes change so it isnt enough for employers to not do anything = employer must be updated, but the court must be slow to blame him.

Baker v Quantum Clothing Group focuses on professional and industry standards influencing breach of duty, what is the context, outcome and importance? (OTHER EXTERNALLY DEFINED STANDARDS - INDUSTRIAL, STATUTORY, ETC)

Context → Claimants worked in knitting factories between 70s and 90s, losing their hearing hence suing their employers. There was a code of practise in 1972 which set a decibel level which employers had to protect their employees hearing and this stayed the same until 1979.

Outcome → The court said the common law duty was consistent with the regulatory standard, till the late 1980s, the code of practise set the standard for a reasonable, prudent employer WITHOUT specialist knowledge. The court argued that you cant be completely passive, the decibel level was way too high before the regulation entered into force, a reasonable employer would do more and they know they had to not because of regulations or when they were agreed, but during the consulation around those regulations, so before the law changed.

Importance → CA concluded a reasonable employer will take time to adjustment up into the regulations went into force. Reasonable employers can do better than regulations.

Bolton v Stone focuses on likelihood of damage, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Context → S was hit by a cricket ball which was hit by a batmans. The ground was surrounded by a fence, so he had to hit it hard to get to that point. The ball was hit out of the ground 6 times and people walked along the road.

Outcome → The ball hitting someone was clearly foreseeable and foreseeability is a necessary requirement for breach. BUT it is not a breach every time you foresee harm or make a risk, a reasonable person might decline to take steps when the probability of harm is very low.

• In this case, the risk was so low that a reasonable person would be justified in taking no steps to eliminate the risk - a very low risk in this case meant no breach in duty of care.

The Wagon Mound focuses on likelihood of damage, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Context → D spilled oil into the Sydney Harbour, setting fire and the fire damaged the claimant's ship. It is difficult to ignite this type of wood and unlikely that the oil would be lit on fire, but JUST BECAUSE it is unlikely doesn’t mean there is a breach of duty of care. Reasonable person can only dismiss the risk if they have a reason for doing so.

Outcome → In the case, this was not a reason and discharging the oil and financial loss and even the small likelihood of harm was a breach of duty of care.

Paris v Stepney Borough Council focuses on gravity of harm, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Context → D is blind in one eye, he used a hammer to dislodge a bolt in the machinery and got into his good eye. The employer didnt provide goggles, but goggles were standard in the industry.

Outcome → BUT the gravity of the harm that the reasonable employer would have given him goggles to protect his good eye - the likeliness is low but the gravity is high, this is the importance

Latimer v AEC Ltd focuses on cost of precautions, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Importance → Bolton v Stone stated we dont take into account cost/expense of proportion even if Wagon Mound says otherwise. But Latimer says it could be relevant.

Context → The storm washed washing agent onto the floor, making the floor slippery and employee spread sawdust to make it not slippery and he slipped where the liquid was there.

Outcome → The court concluded there is no evidence that the defendant was negligent, we need to take into account serious financial risks of shutting the factory down in order to obtain more sawdust to prevent the slippiness of the floor

King v Sussex Ambulance focuses on purpose / desirable activities, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Context → Ambulance worker carried a heavy person downstairs, he didn't have the right equipment, carrying the person - because he was saving someone's life.

Outcome → he obtained no compensation but if he was carrying furnature, he would obtain compensation

Tomlinson v Congleton Borough Council focuses on purpose / desirable activities, what is the context, outcome and importance? (a factor to be taken into account - a reasonable person’s risk taking)

Context → 18 year old was in a lake. The notices had not effect, D knew that there were near drowning every year and D intended to plank the shoreline but didnt do so yet, the 18 year old was drinking, diving in the water and breaking his neck subsequently.

Outcome → The court said there was no breach of duty here as the reasonable owners of this property would not have done anything different + the balance of risk, gravity of harm and cost, the social value of providing this lake and they said it was socially beneficial and it was the most significant factor in this vcase, emphasisied free choice for adults, deciding what risks to take and enjoy the space, taking into account the risks, emphasis on autonomy of individuals

Watt v Hertfordshire CC focuses on purpose / desirable activities, what is the context, outcome and controversy? (a factor to be taken into account - a reasonable person’s risk taking)

Context → This is a case of acting in an emergency. P is a fire officer and D is a fire authority. There is a call about someone being stuck under a lorry, the equipment used to transport a Jack to the scenery of accident wasnt there and it was used elsewhere. P held the jack whilst the lorry moved, P was injured due to holding the jack upright.

Outcome → The court said there was no breach, taking into account the lifesaving purpose which the risk is being run.

Controversy → concerns as to whether this ruling falls back on the employees of public services

Royal Opera House Covent Garden Foundation v Goldscheider focuses query whether alter the common law, what is the context, outcome and controversy? (a factor to be taken into account - a reasonable person’s risk taking)

Context → C was a viola player at the opera house, performing and then suffered injury to his hearing and ending his professional career. D relied on S1 Compensation Act.

Outcome → he court remained neutral as to whether this altered the common law, the court said it didnt assist the defendant since the defendant should protect C's hearing, but it would assist the D if nothing could be done other than abandoning the bargaining of repetoire - though stopping the desirable act would give rise to the Compensation Act.

What is the Compensation Act 2006?

This legislation outlines in summary what Tomlinson case stated

What is Social Responsibility and Heroism Act 2015?

Important to note that 'demonstrated a predominately responsible approach' as Section 3 -

this statue states we must look more generally - such as a generally safe lake, but there is no cases which reinforce it

The point is that this statute might change the common law, but remains unimpactful right now as per Rachel Mulhoren.

Airport Authority v Western Air Ltd on Res ipsa loquitur - and the three requirements for it, and what res iqsa loquitur means?

If there is no evidence as to how the accident happened, the claimant could still win. The claimant sill has to prove the defendant breached their duty and you can infer from the case that the defendant did breach the duty of care.

The privy council stated that for res ipsa loquitur has 3 requirements which is -

1. unexplained occurrance

2. that unexplained occurance wouldnt have occurred in the ordinary course without the negligence of the claimant

3. circumstances pointed unmistakably to the negligence in question being that of the appellant, rather than any other person or agency