Breach of Duty

Key Questions

• Was there reasonable foresight of harm?

• Was there sufficient proximity of relationship?

• Was it fair, just and reasonable to impose a duty?

• If no liability in negligence, duty and breach established, is there/analogy an authority that establishes liability?

• Did the Defendant fall below the standard of care required?

Defining Breach

From Blyth v Birmingham Waterworks (1856):The omission to do something which a reasonable man guided by those considerations regulating human conduct would do, or doing something that a prudent and reasonable man would not do.

What is the ‘Standard of Care’?

An event whereby a wooden plug in a water main became loose in severe frost and caused damage to the claimant’s house prompts the objective measure against the reasonable person.

• Greer LJ in Hall v Brooklands Auto-Racing Club (1933) describes the reasonable person:

  • The man in the street

  • The man on the Clapham omnibus

  • The man who does household chores in relaxed attire.

The Reasonable Person

• The term refers to an average person rather than an ideal one.

• It is crucial to apply an objective test considering what a reasonable person would foresee, not the defendant's subjective outlook.

Special Standards of Care

Certain situations require applying different standards of care:

1. Defendants with a particular skill

2. Defendants lacking a particular skill

3. Defendants who are children

4. Defendants involved in sports events

Defendants with a Particular Skill

• Bolam v Friern Hospital Management Committee (1957):

  • Facts: Claimant underwent electro-convulsive therapy without muscle relaxants leading to dislocations.

  • Judgment: The standard for doctors is “the ordinary skilled man exercising that special skill.”

  • Reason: The procedure was accepted practice among a competent medical body.

  • Significance: Set a standard of care for medical professionals and has been extended to other professions such as auctioneers (Luxmoore-May v Messenger May Baverstock (1990)) and designers (Adams v Rhymney Valley DC (2001)).

• Bolitho v City and Hackney Health Authority (1998):

  • Facts: Claimant sustained brain damage when a doctor failed to intubate after differing medical opinions on its necessity.

  • Judgment: The court found a breach of duty despite medical opinion supporting the doctor.

  • Reason: A professional opinion must withstand logical scrutiny.

  • Significance: Challenges the precedent set in Bolam; standards cannot just be set by practitioners in their field.

Defendants Lacking a Particular Skill

• Nettleship v Weston (1971): No lowered standard for unskilled defendants; a learner driver was held to the standard of a competent driver. This case clarifies that unskilled status does not excuse negligent behavior.

• Wilsher v Essex Area Health Authority (1987): Junior doctors are held to the same standard of care as competent doctors, reinforcing the expectation of responsibility regardless of experience.

• Wells v Cooper (1958): An amateur carpenter was held against the standard of a reasonably competent DIY carpenter.

Defendants Who Are Children

• Mullin v Richards (1998):

  • Facts: Two 15-year-old girls fencing with plastic rulers caused one to lose sight.

  • Judgment: No liability as prudent 15-year-olds would not foresee the risk.

  • Significance: Establishes the standard for minors based on age.

• Gorely v Codd (1967):

  • Facts: A teenager accidentally shot another during play.

  • Judgment: The standard applied was that of a reasonable adult due to the dangerous activity.

  • Significance: Highlights scenarios where minors may be judged against an adult standard.

Sporting Events

• Wooldridge v Sumner (1963):

  • Judgment: An experienced equestrian's conduct during a race was an error of judgment, not recklessness.

• Smoldon v Whitworth and Nolan (1997):

  • Judgment: Referees owe a duty of care, breach determined when rules not enforced, leading to injury beyond player consent.

Foreseeability of Risk

• If a defendant has a duty of care, they must guard against foreseeable harm based on their awareness of the risk.

  • Haley v LEB: Case to explore increase of risk factors.

Extent of Possible Harm

• Also known as the Thin Skull Rule.

  • Paris v Stepney Borough Council (1951): Claimant’s preexisting condition must be considered by the tortfeasor.

Magnitude of the Risk

• Justification of risk may absolve a defendant from liability particularly for rescue services.

  • Cases to research:

  • Watt v Herefordshire CC (1954)

  • Griffin v Merseyside Regional Ambulance (1998)

  • Scout Association v Barnes (2010)

Social Utility of Activity

• The courts examine whether what the defendant was doing necessitates minimising risk versus burden of precautions.

  • Latimer v AEG (1953): Set guidelines for practical risk management.

Negligence of Public Authority

Caparo Tests:

1. Part One: Foreseeability

   • Principle: The damage must be foreseeable to the defendant. A reasonable person in the defendant's position would be able to predict that their actions could lead to harm to the claimant.

2. Part Two: Proximity

   • Principle: There must be a relationship of proximity between the claimant and the defendant. This can be physical, circumstantial, or relational.

3. Part Three: Fair, Just, and Reasonable

   • Principle: It must be fair, just, and reasonable to impose a duty of care on the defendant, considering the specific circumstances of the case.

Key Cases Affecting Police Liability

Hill v Chief Constable of West Yorkshire (1989)

• Facts: The police were aware of a potential threat from the Yorkshire Ripper but did not prevent a murder despite knowing the identity of the suspect.

• Decision: The House of Lords held that the police did not owe a duty of care to individual members of the public regarding the prevention of crime.

• Principle: Limited police liability by reinforcing that police duties are owed to the public at large, not individuals.

• Significance: Established a precedent limiting the scope of police negligence claims, primarily due to public policy considerations.

Michael v Chief Constable of South Wales (2015)

• Facts: A victim was murdered after police failed to respond effectively to a 999 emergency call.

• Decision: The Supreme Court ruled that the police did not owe a duty of care to the victim, reinforcing the principle that public bodies are not liable for failure to act in specific situations.

• Principle: Public policy concerns and the discretion afforded to the police in their operational duties.

• Significance: This case further established the limits of police liability, solidifying the standard from Hill v Chief Constable.

Robinson v Chief Constable of West Yorkshire (2007)

• Facts: The police engaged in a positive act of arrest that led to injury to a bystander.

• Decision: The Court ruled that police could be held liable if their direct actions caused harm.

• Principle: The police can be liable for negligence when their actions directly lead to foreseeable harm.

• Significance: Opens potential for liability where police direct actions or omissions lead to harm, somewhat reversing the trend established in Hill and Michael.

Protecting the Police from Negligence Claims

Reasons for Protection:

1. Public Policy Considerations: Protecting police to avoid excessive litigation that may hinder law enforcement efficiency.

2. Resource Allocation: The police must have discretion over their duties, and liability could restrict this.

3. Defensive Policing: Liability could foster an overly cautious approach that might impair rapid decision-making.

Arguments Against Such Protection:

1. Accountability: Police should be held accountable like other public bodies or individuals, particularly where negligence leads to harm.

2. Rights of Claimants: Victims should have the right to claim compensation when negligence occurs, irrespective of the defendant's role as a public body.

3. Duty of Care: The police's primary responsibility is the protection of individuals from harm, thereby supporting the application of liability in cases of negligence.

Children and the Standard of Care

1. Orchard v Lee (2009)

   • Facts: A child accidentally injures a teacher while playing.

   • Decision: The child was not found negligent as his actions were consistent with what was expected from a reasonable child.

   • Principle: Children are held to a standard reflecting their age and experience.

   • Significance: Reinforced the legal principle that children's actions should be judged based on their developmental capabilities.

2. M v The Newbury District Council (1997)

   • Facts: A 13-year-old threw a stone that caused injury.

   • Decision: The court held the child liable as a reasonable person of the same age would have foreseen the consequences.

   • Principle: Set standards of accountability in negligence cases involving children, assessing actions based on age and maturity.

   • Significance: Clarified the balancing act courts engage in when determining the standards expected of children.