Lecture 3 breach of duty

Nettleship v Weston

Learner driver crashed and injured her instructor (1971). Ruling: No reduced standard — every driver judged against the 'reasonably competent driver'; insurance/loss-distribution justified the objective rule.

Roe v Ministry of Health

Anaesthetic became contaminated through invisible cracks in glass ampoules — a risk unknown to medical science at the time (1954). Ruling: No breach — defendants judged on knowledge available at the time, not with hindsight.

Bolton v Stone

Cricket ball struck a passer-by outside the ground; balls had cleared the fence about six times in 28 years (1951). Ruling: No breach — risk was so small that a reasonable person was justified in not taking further precautions.

Haley v London Electricity Board

Blind pedestrian fell into a trench protected only by hammers a sighted person would see (1965). Ruling: Breach — it was reasonably foreseeable that blind people use city pavements; hammers couldn't be detected by a stick.

Paris v Stepney Borough Council

Garage mechanic already blind in one eye lost his other eye to a metal chip; employer knew of the disability and gave no goggles (1951). Ruling: Breach — gravity of harm (total blindness) required raised precautions for this specific worker.

Smith v Leech Brain & Co

Employer's burn to a worker's lip triggered cancer in pre-existing pre-cancerous cells; he died (1962). Ruling: Defendant takes the victim as he finds him — full liability for the unexpected extent of harm.

Latimer v AEC Ltd

Flooded factory floor mixed with oily fluid; sawdust was spread but didn't cover everything; claimant slipped (1953). Ruling: No breach — closing the factory would have been a disproportionate response to the residual risk.

Goldscheider v Royal Opera House

Viola player suffered acoustic shock and permanent hearing loss from brass section directly behind him in rehearsals (2019). Ruling: Breach — defendant had a sufficient budget to implement seating/architectural mitigation but did not.

Watt v Hertfordshire CC

Firefighter injured by an unsecured jack on an ordinary lorry, en route to rescue a woman trapped under a vehicle (1954). Ruling: No breach — the 'human end' of saving life justified the abnormal risk.

Daborn v Bath Tramways Motor Co Ltd

Wartime shortage forced use of a left-hand-drive ambulance with a warning sign but no driver-side mirror; collision while turning (1946). Ruling: No breach — Asquith LJ: 'the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.'

The Wagon Mound (No. 2)

Furnace oil leaked into Sydney Harbour; nearby welding ignited it; fire risk was very low but real, and harm was catastrophic (1967). Ruling: Breach — where cost of precaution is near zero and potential harm is immense, even a slight risk must be guarded against.

Bolam v Friern Hospital Management Committee

Patient given ECT without muscle relaxants or restraint; suffered fractures; medical opinion was divided on the proper procedure (1957). Ruling: No breach — a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion.

Bolitho v City and Hackney Health Authority

Doctor failed to attend a child suffering respiratory distress (pager battery dead); child arrested and suffered brain damage; experts said she wouldn't have intubated anyway (1997). Ruling: Bolam opinion must be 'capable of withstanding logical analysis'; on these facts the non-intubation was defensible, so no breach.

Sidaway v Bethlem Royal Hospital

Patient not warned of <1% paralysis risk before spinal surgery; risk materialised (1985). Ruling: Bolam applied to risk disclosure — no duty to warn beyond what a responsible body of doctors would disclose.

Pearce v United Bristol Healthcare NHS Trust

Expectant mother not warned of small stillbirth risk if she waited for natural delivery rather than caesarean (1999). Ruling: A 'significant risk' affecting a reasonable patient's judgment must be disclosed.

Chester v Afshar

Patient not warned of small risk of paralysis from spinal surgery; risk materialised though she likely would still have had the surgery later (2005). Ruling: HoL applied a modified causation rule to vindicate patient autonomy; surgeon liable.

Montgomery v Lanarkshire Health Board

Diabetic mother of small stature not warned of 9-10% shoulder dystocia risk in vaginal birth; complication caused baby's cerebral palsy (2015). Ruling: Bolam abandoned for risk disclosure; doctor must take reasonable care to ensure the patient is aware of material risks and reasonable alternatives.

Duce v Worcestershire Acute NHS Trust

Patient not warned of risk of chronic post-operative pain following hysterectomy (2018). Ruling: Two-stage test — Stage 1 (what risks were/should have been known to the doctor) is Bolam; Stage 2 (whether the patient should have been told) is a matter for the court.

McCulloch v Forth Valley Health Board

Patient with chest pains and possible pericarditis not offered NSAIDs because cardiologist judged them clinically unnecessary; he died after discharge (2023). Ruling: Bolam governs which alternatives are 'reasonable' enough to require discussion; Montgomery governs disclosure of risks once those alternatives are identified.

Mansfield v Weetabix

Lorry driver crashed into shop after a hypoglycaemic episode caused by an undiagnosed condition he wasn't aware of (1998). Ruling: No breach — the standard is that of a reasonably competent driver UNAWARE of his condition.

Mullin v Richards

Two 15-year-old schoolgirls play-fencing with plastic rulers; one snapped and a fragment blinded the claimant in one eye (1998). Ruling: Standard is that of an ordinarily prudent and reasonable 15-year-old, not an adult.

Wilsher v Essex AHA

Junior doctor in a neonatal unit gave excess oxygen to a premature baby who later went blind (1988). Ruling: A junior doctor is judged by the standard of the post they occupy, not by their personal level of experience.

Bolam Test

A professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of opinion in that profession.

Bolitho Gloss

The body of opinion relied on under Bolam must be 'capable of withstanding logical analysis' and have weighed comparative risks and benefits.

Montgomery Materiality Test

A risk is material if (i) a reasonable person in the patient's position would attach significance to it, OR (ii) the doctor is/should be aware that this particular patient would attach significance to it.

Duce Two-Stage Test

Stage 1: what risks were/should have been known to the medical professional (Bolam). Stage 2: whether the patient should have been told about them (court, applying Montgomery).