Negligence - breach of duty

How do you define a breach of duty?

Breach occurs when the defendant falls below the particular standard of care demanded by the law.

What are the two questions to be considered when assessing if a defendant has breached their duty of care?

1. How the defendant ought to have behaved in the circumstances - what was the required standard of care in these circumstances? This is a matter of law.

2. How the defendant did behave - did they (as a matter of fact) fall below the standard of care required?

What can you say about the nature of the standard of care?

The standard of care is not one of perfection, as it allows for some errors and mistakes. Reasonable care must be taken to avoid acts or omissions that can be reasonably foreseen as likely to injure your neighbour (Donoghue v Stevenson [1932] Lord Atkin).

The key requirement therefore is that the defendant behaves reasonably.

How do the courts answer the question as to whether the defendant acted reasonably?

The courts answer this by comparing what the defendant has done to the imagined actions of the so-called ‘reasonable’ man, asking what a reasonable man in the position of the defendant would have done in the circumstances.

If the defendant has done something that the reasonable man would not have done (or omitted to dos something that the reasonable man would have done) then they will be in breach of their duty (Hazell v British Transport Commission [1958]).

When assessing the standard of what a reasonable person would do, what kind of test is this?

When assessing what a reasonable man would do in the circumstances, this is an objective test. this means that the standard of care expected of the defendant is not dependent or skewed in favour of certain characteristics or capacities of the defendant (Glasgow Corporation v Muir [1943]). Clearly seen in Nettleship v Weston [1971] - A learner driver is held to the same standard of care as a reasonably competent and experienced driver.

What are three special situations where there is a suppressed standard?

1. Children

2. Those with a disability

3. Professionals

4. Emergencies and stressed situations

Explain the suppressed standard for children

In cases involving children, the standard of care applied is scaled according to age so that it becomes that which can be objectively of a child of that age (Orchard v Lee [2009]).

Explain the suppressed standard of those with a disability

The general rule is that mental or physical disability does not usually lower the standard of care.

Defendants with mental illness are still liable, and the same objective standard applies. This is demonstrated in the following cases:

• Moriss v Marsden [1952]

• Dunnage v Randall [2016]

  • Examples of cases where defendants with mental illnesses are still held liable

Following on from the suppressed standard of those with a disability, where can an exception be made?

Where the defendant is unaware of a medical condition (unlike in Robert v Ramsbottom [1980], demonstrated in Mansfield v Weetabix Ltd [1998], where the driver was unaware of the condition, so there was no breach.

Explain the suppressed standard of care for professionals

The Bolam test and the Bolitho ‘gloss’

Outline the Bolam test

The Bolam test is essentially a test where if the defendant has a special skill or competence and the circumstances are such that they are required to exercise that skill or competence, the actions of the defendant are judged against those of the ordinary skilled man professing to exercise that skill (Bolam v Friern Hospital Management Committee [1957]).

Bolam applies to all professionals exercising a special skill or competence.

The law makes no allowance for inexperience or for the fact that everyone must gain experience ‘on the job’. out

Outline the Bolitho ‘gloss’

This is where courts can reject professional opinion if it is not logically defensible. Not all professional opinions are automatically accepted.

The doctor only knows best if acting reasonably and logically, and getting his facts right.

Summarise the two stage Bolam and Bolitho test:

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’?

Explain the modern approach, in relation to Montgomery

Montgomery v Lanarkshire Health Board [2015] represented a shift to patient-centred care, where patients must be informed of the material risks of treatment and also informed of the reasonable alternatives.

However, the case is not authority for the proposition that medical practitioners need to warn about risks which are theoretical, or ‘background’, as in A v East Kent Hospitals University NHS Foundation Trust [2015].

How do we define what a material risk is?

A material risk is seen to be something that a reasonable patient would consider significant, or what the doctor knows this particular patient would consider significant.

This is both a subjective and an objective test.

What is the two-stage test for this?

Established by Duce v Worcestershire Acute Hospitals NHS Trust [2018], the two stage test is:

1. What risks should the doctor know? (medical expertise)

2. Should the patient be told? (court decides materially)

This is not governed by Bolam and is not solely determined by expert evidence.

In relation to alternative treatments, what is the rule?

A doctor is only required to disclose ‘reasonable alternative treatments’ and what counts as ‘reasonable’ is determined using the Bolam test; only those treatments must then be disclosed under Montgomery.

What is the suppressed standard in emergencies and stressed situations?

In emergencies, courts allow flexibility. The test for this is what would the reasonable person do in that emergency (as in Das Intel Ltd. v Manley [2002]). So, if there is sudden danger, and quick decisions are required, there is less time for careful judgement. Actions may still be reasonable even if imperfect.

When setting the standard of care, what is something the courts take into account?

The courts do not usually take into account the characteristic of the individual defendant, they do take into account the circumstances of the situation in which the accident or injury occurred.

The standard of care does not exist in the abstract (Read v Lyons Co Ltd [1974].

What are the four factors that the courts take into account?

1. Probability or risk of the injury

2. Seriousness of the injury

3. The cost of taking precautions

4. Social value of the activity

What does it mean that this is all a balancing act?

Breach is determined by balancing factors:

• Probability of harm (P)

• Seriousness of harm (L)

• Burden of precautions (B)

Learned Hand formula:

• If B < PL - precautions should be taken, and there is a breach

• if B > PL - no breach

This reflects the overall risk vs cost analysis

Explain the first factor

One of the first factors taken into account is the likelihood of the injury occurring. The general rule is the more likely - or more foreseeable - the outcome, the greater the possibility that the courts will find the defendants liable for failing to take steps to avoid it (Bolton v Stone [1951] the risk was really low, so there was no breach).

The lower the probability, the less precaution required

What does foresight, not hindsight, mean?

The defendant’s conduct is assessed at the time of the alleged breach. IF something seems to be acceptable at the time, that is, if the risk of injury is low, then it is unlikely to be considered negligent (Roe v Ministry of Health [1954]).

Explain the second factor

The second factor the courts take into account is the seriousness of the injury should it occur. Generally, the more serious the potential injury, the more likely the defendant will be found to have fallen below the required standard of care should it materialise (Paris v Stepney Borough Council [1951]). E

Explain the third factor

The lower the cost, whether in terms of time or money, the more reasonable it is that someone should take precautions.

If the cost of taking precautions is very onerous, it is less likely that it will be considered reasonable for the defendant to bear such costs, especially, but not only, when he risk of injury is low (Latimer v ERC Ltd [1953]).

Explain the fourth factor

The great the social value of the activity, the more likely the court will find it reasonable to have dispensed with safety precautions.

Liability is fact-specific and cannot be resolved in a vacuum (Caldwell v Maguire [2002]).

How do we establish an answer to the second question of if the defendant has breached duty?

This is largely a question of fact to be determined by the court o the evidence before them.

The burden is on the claimant to establish on the basis of probabilities, that it is more likely than not that the defendant’s actions felt below the required standard of care.

Courts could infer negligence from the circumstances in which the accident or injury took place - res ipsa loquitur (‘the thing speaks for itself’). Sometimes the circumstances of the negligence can be evidence of carelessness.

For the rule to come in play, two things need to be met. What are these two things?

1. The thing which caused the accident needs to be ‘under the management of the defendant, or his servants’. The defendant needs to have control over 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’. This depends on the circumstances of the case.

If the defendant is unable to explain how the accident occurred but can show that they exercised all reasonable care in the circumstances, they will not be found liable (J v North Lincolnshire County Council [2000]).