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2.4.2 Breach of Duty Lecture

Once a duty of care has been found, it is then necessary to ask whether the defendant has acted in such a way as to have breached that duty of care. The key thing to ascertain is the standard expected of the defendant and then to examine the actions of the defendant to see whether they have fallen short of this standard.

The standard of care will always be based on reasonable foreseeability. This means that the courts will not ask the defendant whether they foresaw a certain outcome or not, but rather they will seek to work out what the defendant ought to have foreseen. This means that cases which involve highly unlikely outcomes are not likely to be successful. In Fardon v Harcourt-Rivington [1932] All ER Rep 81 the courts ruled the outcome was a ‘fantastic possibility’, and therefore not foreseeable. The defendant was only obliged to avoid ‘reasonable probabilities’.

Ascertaining the Standard of Care for Different Defendants

The law strikes a balance between providing compensation where a failure has been particularly egregious, and where a genuine accident has occurred. As such, Donoghue v Stevenson(and subsequent cases) have held defendants to the standard of the reasonable man. If a defendant has acted reasonably, then they will not have breached the duty of care, and vice versa. Although this seemingly suggests that defendants are always judged against objective standards, there does exist some scope to alter the test, depending on the characteristics of the defendant.

The general rule is that defendants are expected to act with a reasonable level of skill in the activity they are undertaking. Consider the leading case of Nettleship v Watson where the defendant argued that as a learner driver, she should be judged against a lower standard of care. The courts rejected this, and held that some who undertakes a task should be judged against the standard of a reasonably qualified, competent person undertaking that task.

In essence, this means that a defendant cannot rely on their own lack of skill or knowledge as a defence. The most important general principle regarding breach is therefore that the applicable standard of care is that of a reasonably competent person undertaking that activity.

In Hall v Brooklands Auto-Racing Club[1933] 1 KB 205 the ‘reasonable man’ was described as ‘the man in the street’ or ‘the man on the Clapham Omnibus’. Essentially, the reasonable man should not be considered as acting perfectly, merely, averagely.

There are a number of exceptions to the general rule, as follows.

Defendants with Certain Medical Conditions

The courts have held defendants to a standard which takes into account certain medical conditions a defendant might be suffering from. In Mansfield v Weetabixthe standard of care expected of a lorry driver with an undiagnosed condition was “obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of [his] condition would be to impose strict liability…” (Leggatt LJ, at 1268).

Children

The standard is instead that of an ordinary child of the defendant’s age as per Orchard v Lee[2009] EWCA 295. In the case, the courts ruled that no breach had occurred as the 13-year-old involved was acting in the usual manner expected of a 13-year-old.Children are not able to escape all liability – thus, in Mullin v Richards[1998] 1 WLR 1304 the courts considered that an incident was reasonably foreseeable to a 15-year-old.

Sporting Events

In Woolridge v Sumner[1963] 2 QB 43 it was held that due to the inherent risks involved in sporting activities – they often involve moving faster or more violently than would ordinarily be expected of an individual – the standard is different.

Participants must still act in a manner reasonably expected of someone playing that sport. In Caldwell v Maguire[2001] EWCA Civ 1054 the courts noted that whilst the standards of behaviour which apply in sporting situations are lower than those which might apply in everyday life, sporting competitors are still expected to act in a reasonable manner – both in terms of following the rules of a sport and in terms of acting with skill and aptitude.

Those Acting as Professionals

Professionals are judged against the standards of their profession. This is based on the Bolam test: those acting as professionals are expected to act in accordance with a competent body of professional opinion. Although Bolam involved medical practitioners, it has been held to apply in general to other professionals. This has also involved widening the test to take into account non-traditional professions such as auctioneers (Luxmoore-May v Messenger May Baverstock[1990] 1 WLR 1009) and window designers (Adams v Rhymney Valley DC[2000] Lloyd’s Rep PN 777).

A clarification per Bolitho v City and Hackney Health Authority[1998] AC 232 is that a course of action must be capable of withstanding logical analysis before it is protected by the Bolam test.

Clarifying the Reasonable Standard of Care

The relevant standard of care shifts depending both on the nature of the defendant, and the nature of the activity being undertaken.

Magnitude of Risk

If a risk is particularly pronounced, then there will be an expectation that the reasonable person will act to prevent that risk from occurring, as per Bolton v Stone[1951] AC 850 and Miller v Jackson[1977] QB 966. The law will seek to impose a standard of care which scales proportionally with the risk involved.

If a risk is of a serious harm, the applicable standard of care may be higher due to such a risk being foreseeable (Paris v Stepney Borough Council[1951] AC 367).

Cost of Precaution

The courts will take into account the cost of precaution when considering the applicable standard of care. The lower the cost of a precaution, the more reasonable it will be held for the defendant to have taken it, and vice versa (Latimer v AEC Ltd[1953] AC 643).

Therefore, when dealing with a risk, an inquiry should be made regarding the cost of prevention. However, it should be noted that it is unlikely that a defendant will be able to use lack of money as a defence. After all, safety is usually the first concern we’d like businesses and organisations to deal with, rather than financial viability.

Social Value of Activity

The courts will apply a lesser standard of care to socially valuable activities, and vice versa. This principle is best understood via the relevant leading case, Watt v Hertfordshire County Council [1954] 1 WLR 835, where the courts denied the claim of a fireman injured in the course of a rescue; the emergency nature of the situation and the utility of saving a life outweighed the need to take proper precautions.

It should be noted that even when the social value of an activity is extremely high, there still exists a need to act with relative diligence. Contrast Watt (above) to Ward v London County Council[1938] 2 All ER 341, where the courts held that a fire engine slowing down sufficiently at the junction would not have substantially affected the service’s emergency response, and that the social value of the fire service’s activities did not justify needlessly endangering other road users.

The social value of a given activity is dependent on the context of that activity. In Scout Association v Barnes[2010] EWCA Civ 1476 the courts were left to ascertain whether a chance of injury in a game played in the dark at the Scout Association was in proportion to the social value of the activity. The courts ruled that whilst there was additional value in playing the game in the dark, this turned an ordinarily risky, but socially justified activity, into one which could not be justified by reference to social value. Thus, an activity which ordinarily didn’t breach standard of care became unacceptable when the context changed.

Proving Breach

Once the relevant standard of care has been established, it is up to the claimant to argue that the defendant breached the standard. This will be based on the balance of probabilities.

Res Ipsa Loquitor

Translated as ‘the facts speak for themselves’, this refers to specific situations in which the claimant cannot directly show that the defendant factually acted in a negligent manner, but that it is more likely than not that the defendant acted negligently. In Scott v London & St Katherine Docks Co[1865] 3 H&C 596, the courts ruled that there was no need for the claimant to show that the defendants had factually caused his injuries on the basis of res ipsa loquitor, laying down a three-part test for the use of the maxim.

Firstly, the thing which causes damage must be under the control of the defendant (or under the control of someone for whose actions the defendant is responsible for.) Secondly, the cause of the accident must be unknown. And thirdly, the injurious event must be one which would not normally occur without negligence.

Each part of this test can be clarified further. The definition of ‘control’ depends on the case itself. In Easson v LNER[1944] 2 KB 421 it was held that a train company could not be described as being in control of the doors which injured the claimant as there was no evidence that the train company had opened the door; it could just have easily have been a passenger on the train who opened it.

The need for an unknown cause is relatively self-explanatory. If the facts of the case are available to the court, then the claimant can rely on them to prove his or her case in fact, rather than relying on res ipsa loquitor. In Barkway v South Wales Transport[1950] AC 185, it was held that where two separate versions of events are presented to the judge, he cannot use the res ipsa loquitor mechanism – the judge must make a decision regarding the most accurate set of facts.

Finally, it must be successfully argued that the event which caused the claimant’s injuries would not have occurred without some sort of negligence. Scott (above) demonstrates this, as does Ward v Tesco Stores Ltd[1976] 1 WLR 810 where the courts held that an accident would not have occurred but for some negligence on the part of the defendant, and so res ipsa loquitor applied.

The effect of res ipsa loquitor is that it raises a presumption of negligence against the defendant. However, this presumption is rebuttable – if the defendant can still provide an explanation of how the harm might have occurred without negligence then the use of the maxim will fail. This will leave the claimant to show that the defendant’s version of events is faulty – in essence the burden of proof is then the same as a normal case.

Cases Involving Criminal Proceedings

Finally, it is possible for a claimant to use a defendant’s criminal conviction as proof that an act of negligence occurred, as per the Civil Evidence Act 1968:

s.11 Convictions as evidence in civil proceedings

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before and court in the United Kingdom or by a court-martial there or elsewhere […]

(a) he shall be taken to have committed that offence unless the contrary is proved.

If a defendant is convicted of an offence, and that offence involves a negligent action, then the burden of proof will be on the defendant to show that their conduct was not negligent. This is most relevant in cases involving traffic accidents – careless driving is both a criminal offence, but is also an act which will often give rise to cases in tort. Rather than claimants having to prove negligence on the part of the defendant, they can simply refer to the fact the defendant has been found criminally liable for a negligent act.


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