Negligence: Breach of Duty

What is the test for breach of duty of care?

Reasonable person test

When will D be in breach of duty of care?

If D fell below the standard of care of a reasonable person.

What 3-step inquiry does the court make to apply the reasonable person test?

1. What qualities/characteristics should the hypothetical reasonable person possess?

2. What would the reasonable person have done in the surrounding circumstances?

3. Did D take less care than the reasonable person?

How can the standard of care vary?

Can range from doing nothing to taking active precautions or discontinuing the activity entirely.

Is the reasonable person an objective or subjective concept? (2)

• In general, an objective concept.

• Subjective qualities of the C are not taken into account except in limited exceptions.

How is scientific knowledge assessed for breach?

The reasonable person has reasonable scientific knowledge according to what was known at the time of the accident, not at trial — Roe v Minister of Health

What are the facts and decision of Roe v Minister of Health? (2)

• Facts = Anaesthetist used anaesthetic from a glass ampoule submerged in phenol, which had entered via an invisible crack.

• HELD = D not liable because the danger of invisible cracks was not known at the time of the incident, even though it came to light by trial.

What is the standard where a special skill is required?

The reasonable person is taken to have the ordinary skill of a competent person in that field — Bolam

How is inexperience treated? (2)

• Not taken into account.

• Learner or junior professionals are judged by the objective standard of a competent person — Nettleship v Weston and Wilsher v Essex AHA

What was held in Nettleship v Weston?

Learner driver judged against experienced driver standard

What was held in Wilsher v Essex AHA?

Junior doctor not excused due to inexperience

Does conforming with industry practice absolve a D? (3)

YES — A reasonable person is expected to conform with established industry practice UNLESS:

1. The practice was clearly bad; or

2. The employer had greater than prevailing knowledge of the risks.

Baker v Quantum Clothing Group

What was held in Baker v Quantum Clothing Group?

Clothing manufacturers were not liable for employees’ hearing loss because noise levels were below the Code of Practice maximum.

What is the Bolam test? (2)

• A medical professional is not in breach if acting in accordance with practice accepted as proper by a responsible body of other medical professionals in that area.

• One supportive body of opinion suffices.

When will Courts reject the professional opinion under Bolam?

If the professional opinion lacks a logical basis OR experts did not direct their minds to comparative risks/benefits, courts will not accept it — Bolitho v Hackney HA

Where does Bolam not apply in medical decisions? (2)

• Does not apply to decisions that courts can assess (e.g., duty to warn of risks) —Montgomery v Lanarkshire Health Board

• Doctors must disclose material risks and reasonable alternatives, except for limited therapeutic exception.

What standard applies to an adult with physical or mental impairment?

Standard is that of a reasonable person without the impaired individual’s personal characteristics — Dunnage v Randall & UK Insurance

What are the facts and decision of Dunnage v Randall & UK Insurance? (2)

• Facts = A deceased with schizophrenic seizure set himself on fire, killing himself and injuring C.

• HELD = Despite schizophrenia, the deceased’s insurers were liable — impairment did not lower the standard.

When can impairment be treated differently? (3)

• Where sudden incapacitation results in an omission rather than an act.

• e.g. Being forced to stab another or suffering a fatal coronary while driving.

• Acts driven by deranged mind are not treated as incapacitation.

What is the Doctrine of Prior Fault?

If incapacitation results from a prior failure to take care (creating risk earlier), D remains liable. → Liability fixed at earlier time when risk was created — C (A Child) v Burcombe

What are the facts and decision in C (A Child) v Burcombe? (2)

• Facts = A 70-year-old with a serious heart condition carelessly failed to take medication and then had a heart attack while driving.

• HELD = 70-year-old was liable.

How is a child’s age treated in the standard of care? (2)

• A child is judged by the reasonable child of the same age — Mullin v Richards

• BUT if engaged in adult activity, age may be ignored (e.g. driving parents’ car).

What was held in Mullin v Richards?

Injury from a ruler fight was not reasonably foreseeable to children of that age.

How does foreseeability enter the breach analysis? (2)

• To decide what a reasonable person would do, the Court asks whether the risk was reasonably foreseeable.

• One cannot guard against unforeseeable risks.

Is the threshold for reasonable foreseeability high? (2)

• NO — only exceptionally rare risks are unforeseeable.

• Foreseeability is distinct from probability — a risk can be probable but not foreseeable, and vice versa.

Which case shows a professional expected to guard against a minute risk?

The Wagon Mound (No. 2) — despite low probability, engineers were expected to eliminate oil leakage risk given the ease of prevention.

Where else does foreseeability feature?

Remoteness analysis

What is the negligence calculus? (2)

• A normative balancing exercise weighing (a) magnitude of risk and (b) gravity of risk against (c) social utility of defendant’s conduct/social cost of prohibiting it and (d) financial cost of precautions.

• If (a + b) > (c + d) then breach occurs.

What is magnitude of risk? (2)

• The probability that harm would occur.

• Courts consider it in assessing the standard of care — Bolton v Stone — a small risk may not require precautions.

What was held in Bolton v Stone?

A cricket ball striking someone in adjoining highway was reasonably foreseeable BUT so remote that a reasonable person would not guard against it.

When will a reasonable person take precautions for small risks?

Where cost of precaution is low or null — Wagon Mound (No. 2)

What is gravity of risk and how does it affect standard of care? (3)

• Gravity = seriousness of potential consequences.

• Higher gravity raises the standard of care.

• Disabilities of C may be considered — Paris v Stepney Borough Council

What was held in Paris v Stepney Borough Council?

A one-eyed employee blinded in workplace should have been given goggles — Higher gravity (risk of total blindness) required greater precaution.

How does social benefit factor into breach?

Courts consider whether the social benefit of activity makes the risk acceptable OR whether prohibiting activity would cause unacceptable social cost.

What was held in Barnes v Scout Association?

Scouting is beneficial but turning off lights for a game lacked social benefit to justify the risk — D liable.

What was held in Watt v Hertfordshire?

Fire authorities not negligent for using heavy jack in lorry during emergency — social utility (saving life/limb) outweighed precaution cost.

What was held in Tomlinson v Congleton BC?

A council not negligent for not making lake inaccessible — preventing harmless recreation to protect irresponsible visitors would be unjust.

What broader judicial concern influenced assessing social cost?

Anxiety about a “compensation culture” and protection of freedom/individualism — people must accept some risk to preserve freedom of activities — Lord Hoffmann in Tomlinson

What does s1 Compensation Act 2006 state about social benefit?

A Court may regard whether requiring precautions might:

(a) Prevent desirable activities; or

(b) Discourage persons from undertaking functions in connection with desirable activities.

s1 Compensation Act 2006: What about unjust/illegal activities?

Such activities require precaution regardless of risk size — Wagon Mound (No. 2) (illegal leakage should have been prevented).

How does financial cost affect the standard of care? (2)

• Cost to D of precautions is relevant.

• If cost is disproportionate, the reasonable person may not be expected to take them. — Latimer v AEC Ltd

What are the facts and decision of Latimer v AEC Ltd? (2)

• Facts = Factory floor was flooded. → Employer cleaned but C slipped and fell.

• HELD = Closing factory would be costly and burdensome — the employer was not negligent for failing to close.