Obligations, Tort - Negligence, Breach of Duty

Establishing a breach

The standard of care reflects law, whereas breach is a matter of fact, and the burden of proof is on the claimant here on the balance of probabilities. It asks two questions - how D ought to have acted (law), and how D did act (fact).

Standard of care - The reasonable man

The standard used is that with which the average person would objectively act - this is lowered for children, and higher for professionals. It does not expect perfection and allows for mistakes - it relies on reasonability. This was created by judges in Blyth v Birmingham Waterworks, creating criticisms that the ‘average man’ may be influenced by backgrounds.

Legal Standard of care - Objectivity

Individual traits do not factor in - age, profession and illness, etc may be considered. The circumstances under which you acted is also considered, such as where resources or options may be limited.

Legal Standard of care - Inexperience in Nettleship v Weston [1971]

Learner driver crashed car and injured instructor - but was held to the same standard, for both policy and insurance reasons. Insurance covers damages, and it would be unfair to not be able to recover after being hit by a learner driver.

Legal Standard of care - Illness in Roberts v Ramsbottom [1980] and Mansfield v Weetabix Ltd [1998]

Roberts v Ramsbottom [1980] - Ramsbottom had suffered a stroke, and realised his consciousness was impaired but chose to drive still. He ended up crashing, and was held liable for falling below the standard of any reasonable driver by knowing he was unfit to drive but still choosing to do so.

Mansfield v Weetabix Ltd [1998] - D’s driver was having a medical condition without knowing, and crashed into a shop. He was ruled to not have fallen below the standard expected, as he was held to the standard of a reasonable driver not knowing they were suffering medically and were not fit to drive.

Determining the legal standard of care - Likelihood of harm and Bolton v Stone [1951] and Roe v Minister of Health [1954]

The more likely the injury, the more likely D will be liable for breach.

Bolton v Stone [1951] - cricket ball struck woman on head over 7ft fence. It had only gone over the fence a few times out of 30 years, so injury was very unlikely, so D was not liable.

Roe v Minister of Health [1954] - anaesthetic for an operation was stored in a phenol disinfectant, which mixed with the solution and caused paralyses - its toxicity was only known later. The negligence could not be judged with hindsight they did not have at the time = no breach.

Determining the legal standard of care - Seriousness of harm and Paris v Stepney Borough Council [1951]

Any risk for serious injury means it is more reasonable for precautions to be taken to guard against them.

Paris v Stepney Borough Council [1951] - welder only had one working eye, and employers failed to provide him with goggles so it became injured - the risk was higher, since he had only one working eye.

Determining the legal standard of care - Cost of precautions and Latimer v AEC Ltd [1953]

The lower the cost, the more likely that D should have put them in place - this can consider money, time and other resources.

Latimer v AEC Ltd [1953] - A factory had flooded, but was mopped and sawdust sprinkled to prevent injury. C slipped and sued - but no other proportionate precautions could be taken, only total closure, which would mean loss of earnings (disproportionate) = not fallen short of duty.

Determining the legal standard of care - Social Value of Activity, Watt v Hertfordshire County Council [1954] and Tomlinson v Congleton Borough Council [2003]

The more valuable an activity, the more likely the court will find D acted with adequate safety precautions.

Watt v Hertfordshire County Council [1954] - Firefighters responded to a call of a woman trapped under a car in a lorry to carry heavy equipment - one of them was injured, but no breach of duty was found, since it was worth the end of saving her life or limbs.

Tomlinson v Congleton Borough Council [2003] - C dove headfirst into water despite warning signs not to, and became paralysed after hitting his head - he argued there should be barriers or more signs, but courts ruled the social value of the picnic spot justified not needing more precautions.

Factual standard of care and burden of proof

The actual act, and whether this fell below the legal standard - this relies on the C for burden of proof, excluding when the act is a criminal offence and can be used a s evidence that a breach has occurred - this does not prove negligence but shift the burden of proof onto the D.

Factual standard of care - Res Ipsa Loquitur

‘The thing speaks for itself’ - when the circumstances could not have occurred without negligence (e.g. medical dressing left in patient causing infection).

Factual standard of care - Children, Orchard v Lee [2009] and Mullin v Richards [1997]

Very young children do not owe a duty at all, and it is lowered for children, though older children are held to what we can expect from someone their age. Children only really held in negligence if extremely careless or significantly outside of norms for their age.

Orchard v Lee [2009] - Two 13y/o boy knocked over a dinner lady at breaktime, causing her to hit her head. They could not be found liable, as there was no extra duty we could objectively expect of someone their age.

Mullin v Richards [1997] - Two 15y/o schoolgirls were playing with rules when one snapped and ended up in C’s eye. There was no breach of duty, as D was held to the standard of any reasonable 15y/o who will sometimes act irresponsibly.

Factual standard of care - Professionals, Lucas v George Rusz (2019) and Wilsher v Essex Area Health Authority [1987]

Those that profess to have professional skills will be held to the standard of the average person in that profession - the reasonably competent person occupying that post.

Lucas v George Rusz (2019) - was not legally qualified but proclaimed to have extensive skill in handling claims, and that his services were better than a lawyer - he was held to the same standard of a reasonably competent legal professional.

Wilsher v Essex Area Health Authority [1987] - a junior doctor inserted a catheter wrong, meaning increased oxygen levels delivered to a premature baby, causing blindness. The doctor should have noticed this on an x ray, and was held to the standard of a reasonably competent person in his post.

Factual standards of care - Bolam v Friern Hospital Management Committee [1957] and the Bolam Test

A patient elected to undergo ECT and sustained a hip fracture, later suing and citing the doctor failed to either administer muscle relaxants, physically restraining him, or warning him about the risk of injury. Courts ruled there was no breach, as other reasonable doctors said they would act in the same way.

The Bolam Test meant that there is no breach by professionals if they acted in a way which is accepted in the profession, even if there are divisions of opinions - it can be quite a low bar to reach, puts law in the hand of the profession, and fails to protect patient interests.

Factual standard of care - Bolitho v City and Hackney health Authority [1997] and the Bolitho gloss

A young patient went into cardiac arrest, stopped breathing and died. The doctor did not arrive after being paged, so was sued - but she argued she would not have intubated the boy regardless, and could point to a group of professionals who would act the same way.

This introduce the Bolitho gloss on the Bolam test - where the professionals’ ideas are taken into account only if they’re reasonable and logical, and the facts on which it is based is correct.

Factual standard of care - Information disclosures in Sidaway v Board of Governors of Bethlam Royal Hospital [1985]

Patient not told of the small risk that a back operation could paralyse her - this happened, and she sued, claiming she would never had agreed if she had known the risks. The courts used the Bolam test, and since professionals agreed they would not inform patients, ruled there was no duty breached.

This was criticised for its medical paternalism, harming patients making choices, autonomy, and the ability to make informed choices.

Factual standard of care - Information disclosure in Montgomery v Lanarkshire Health Board [2015] and the test of materiality

Woman developed gestational diabetes, which increases the size of babies and risks shoulder dystopia (baby is stuck, and can cause lack of oxygen). C was not told any of this, and said she would have opted for a C-section had she known - her baby was born with disabilities, including cerebral palsy - the doctor said they opted not to tell her since they believed a C-section was not in her best interests. UKSC ruled for C, since doctors have a duty to make sure patients are informed of reasonable risks to treatments, and any alternatives.

This created the test of materiality, where if any reasonable person in the patient’s position would attach significance to a risk, it should be disclosed. The only exceptions are for when doctors believe disclosure would seriously detriment the patient’s health, or in times of necessity.

Factual standard of care - Post-Montgomery

Disclosure has been applied not just to treatments, but also for diagnoses in identifying alternatives, as well as beyond medical contexts (See O’Hare v Coutts & Co [2016] for investment risk disclosures). However, there may be financial implications on increased patient autonomy for the NHS and other publicly funded bodies.