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 here is therefore the standard expected of the defendant. Once that has been done, it is also necessary to examine the actions of the defendant to see whether they have fallen short of this standard.

Before continuing, it should be noted that 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. See Fardon v Harcourt-Rivington [1932] All ER Rep 81 – the defendant’s dog, which was usually docile, was left in the defendant’s car. It started jumping around and barking, and in the process of doing so smashed a window, resulting in glass entering the claimant’s eye. The courts ruled the outcome was a ‘fantastic possibility’, and therefore not foreseeable. In contrast, the defendant was only obliged to avoid ‘reasonable probabilities’.

So, before dealing with any case, it is first worth asking ‘are the defendant’s injuries caused by a fantastic possibility, or a reasonable probability?’ If the answer to this question is the former, then the courts are unlikely to rule that the duty of care was breached.

Ascertaining the Standard of Care for Different Defendants

The existence of a duty of care does not mandate perfect behaviour. Whilst there is certainly a duty of care between drivers and other road users, this duty does not mandate that every driver must drive perfectly. Instead, 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.

Case in Focus: Nettleship v Watson[1971] 3 WLR 370

The defendant was a learner driver, taking lessons a friend – the claimant. Before agreeing to teach her, the claimant checked to see if the defendant’s insurance covered passengers. After turning a bend, the claimant told the defendant to straighten the wheel. She panicked, and before the claimant could grab the wheel, the car crashed into a lamppost, fracturing the claimant’s knee.

The defendant argued two points. Firstly, that as a learner driver, she should be judged against a lower standard of care (and therefore, that her actions did not breach the standard of care expected of a learner driver.) Secondly, that because the claimant agreed to get into the car with a learner driver, a defence of volenti non fit injuria (voluntary acceptance of risk) applied.

Both of these arguments failed. The courts held that some who undertakes a task should be judged against the standard of a reasonably qualified, competent person undertaking that task.

The second argument failed on the grounds that the claimant did not waive his rights – he demonstrated this when he checked the driver’s insurance.

Thus, the courts do not recognise a tiered system of competency, at least as far as those learning a new skill are concerned. So, the standard of care expected of, for example, an amateur archer, is the same as the standard of care expected of a reasonably competent archer. 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.

Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 provides further guidance as to the standard of behaviour expected of a ‘reasonably competent person’. The defendant was participating in a motor race when he lost control of his vehicle, killing and injuring spectators. In identifying the ‘reasonable man’, some guidance was provided, describing him, at points, 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. In turn, this means that defendants are not asked to act perfectly; instead, they are held to an average standard.

As might be expected, there are a number of exceptions to the general rule, as follows.

Defendants with Certain Medical Conditions

Firstly, in the past the courts have held defendants to a standard which takes into account certain medical conditions a defendant might be suffering from. This can be seen in Mansfield v Weetabix.

Case in Focus: Mansfield v Weetabix [1998] EWCA Civ 1352:  The defendant was suffering from an undiagnosed condition (malignant insulinoma, resulting in hyperglycaemia), and as a result drove his lorry into a shop owned by the claimant. The driver had also been involved in two minor accidents on the same day. The outcome is best explained by Leggatt LJ:

“In my judgement, the standard of care that [the driver] 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

It is important to take note of the logic at play here – if the driver was held to be negligent then this would involve blaming him for an accident he had no reasonable way of preventing. At the same time, it can be argued that the shop owner had absolutely nothing to do with the destruction of his shop, and so should be able to recover. Regardless, this case demonstrates that the courts will not simply seek to find the person who is most at blame for an incident. Rather, they will ensure that a party has passed a certain threshold for culpability before they are held responsible. Overall, the take away point is that someone who is reasonably unaware of a medical condition will not have it held against them in determining breach.

Children

As might be expected, children are held to a different standard then adults when it comes to determining the applicable standard of care. 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 a 13-year-old was playing in a playground at his school. He ran into the defendant (who was supervising the playground at the time) and injured her. The courts ruled that no breach had occurred – the 13-year-old was acting in the usual manner expected of a 13-year-old.

However, this should not be taken as meaning that children are able to escape all liability – thus, in Mullin v Richards[1998] 1 WLR 1304 the courts considered a similar question as in Orchard – the claimant and defendant were mock-fighting with plastic rulers. One of the rulers broke, causing an injury to the claimant’s eye. The courts considered such an incident from the perspective of a 15-year-old and found that it was reasonably foreseeable, and they accordingly imparted liability on the defendant (whilst at the same time reducing damages by 50%, due to the contributory negligence by the claimant, who by the same logic should have foreseen the incident).

It is worth noting that there is no minimum age for liability under tort law (although of course, the younger the child, the harder it will be to show a breach of standard of care, and the likelihood of young children having a duty of care towards one another is small.) As such, whilst young age will often help a defendant avoid liability, it does not operate as a complete defence.

Sporting Events

The courts will also apply a different standard of care to those participating in sporting events than it ordinarily would. This is exhibited in Woolridge v Sumner[1963] 2 QB 43. The defendant was participating in an equestrian event when his horse went out of control, left the track and injured a spectating photographer. It was held that there was no negligence on the part of the rider, rather a simply error of judgement (which might reasonably be made by a participant.) The logic behind such a decision is also extrapolated upon, by Diplock LJ at 67: “A reasonable spectator attending voluntarily to witness any game or competition knows and presumably desires that a reasonable participant will concentrate his efforts on winning. […] If the participant does so concentrate his attention […] the question of whether any mistake he makes amounts to a breach of duty to take reasonable care must take account of these circumstances”. In essence, Diplock LJ notes the inherent risks involved in sporting activities – they often involve moving faster or more violently than would ordinarily be expected of an individual. Consider the difference between someone driving on the road and someone driving on a race track – whilst the activity is similar, the expected standard of behaviour differs greatly. This is taken into account by the law.

However, it is worth keeping in mind that participants in sporting activities must still act in a manner reasonably expected of someone playing that sport. This is exhibited in Caldwell v Maguire[2001] EWCA Civ 1054 – the claimant was injured when he fell off his horse during a race. It was submitted that two other jockeys had undertaken an unsafe manoeuvre, causing the dismount. In examining the claim, the courts noted that whilst the standards of behaviour which apply in sporting situations are lower than those which might apply in everyday life, this does not mean that standards do not exist in the sporting realm at all. Instead, 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

An additional expectation exists regarding those who are acting as a professional. The relevant standard of care in such situations is not that of the reasonable person. Instead, professionals are judged against the standards of their profession. This is based on the Bolam test.

Case in Focus: Bolam v Friern Hospital Management Committee[1957] 1 WLR 583.

The claimant underwent a court of Electro-Convulsive Therapy (ECT) in a hospital whilst being treated for severe depression. Such treatment (which is now rarely employed) had the aim of causing seizures. The defendant failed to provide the claimant with either muscle relaxants or restraints during the procedure, and as a result the claimant suffered from a number of dislocations and fractures.

The courts sought to apply the Nettleship standard – that of an ordinary man exercising a specific skill, but ran into trouble – there were conflicting views within the medical profession on the use of relaxants or restraints during the procedure. As such, they implemented the Bolam-test: that is, those acting as professionals are expected to act in accordance with a competent body of professional opinion. Because a body of opinion existed which stated that it was preferable to carry out the procedure without relaxants or restraints, the practitioner had not breached the standard of care, and the claim therefore failed.

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. Thus, it has been applied in cases involving auctioneers in Luxmoore-May v Messenger May Baverstock[1990] 1 WLR 1009, through to window designers in Adams v Rhymney Valley DC[2000] Lloyd’s Rep PN 777.

There is one further clarification to the rule for professional, as per Bolitho v City and Hackney Health Authority[1998] AC 232. The claimant (a 2-year-old child) was a patient in hospital who died when a doctor failed to attend to clear her blocked airways and intubate. At trial, the defendant and another doctor claimed that had they attended, they would not have intubated, and thus were acting in accordance with a Bolam standard of care. The courts held that a course of action must be capable of withstanding logical analysis before it is protected by the Bolam test. Thus, the overall   principle is that for professionals, the minimum expected standard of care is based on a body of professional opinion, but that opinion must be logically defensible. In Bolitho itself, it was ruled that there was a logically defensible argument to be made regarding not intubating, and so the claim failed.

Clarifying the Reasonable Standard of Care

The courts will often see novel situations which defy quick reference to the reasonable person due to their unique facts or circumstances. The courts have therefore created a framework which deals with the factors surrounding a given incidence of negligence. The relevant standard of care therefore shifts depending both on the nature of the defendant, and the nature of the activity being undertaken.

Magnitude of Risk

There are two ways the magnitude of risk affects the relevant standard of care. The first of these is likelihood of risk, and the second is the seriousness of the risk involved.

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. Both cases involved damage caused by errant cricket balls; however, in the former case it was shown that cricket balls rarely left the cricket ground, and so the risk of damage was small. Conversely, in the latter case, cricket balls left the ground several times every season, constituting a reoccurring risk. Although the damage in both cases was of a similar nature, negligence was only found in the latter case; because the likelihood of injury was higher, so was the applicable standard of care. This also demonstrates the principle of foreseeability – in the former case it was not particularly foreseeable that harm would occur because cricket balls rarely left the ground, and vice versa for the latter case.

The same principle can be operating in Haley v London Electricity Board[1965] AC 778 – the defendant was sued for failing to provide proper safety fences around a hole it was digging on a London street. As a result, the claimant, who was blind, fell into the hole, injuring himself. Because it was held to be a foreseeable risk that someone blind would be walking down the street, and would therefore be unprotected from the hazard, the claim was successful. In contrast, consider a case with similar facts, but in which the hole was dug in a remote field – because the likelihood of a blind person falling into the hole is far lower, so is the expected standard of care.

This is an arguably logical stance – if, for example, a lab is working with the highly infectious Ebola virus, we’d want it to act with the utmost care because it presents a likely risk. Conversely, it would be unjust to apply this high standard to a secondary school lab working with some benign bacteria – the likelihood of it harming someone is far, far lower. As such, the law will seek to impose a standard of care which scales proportionally with the risk involved.

Regarding the seriousness of the risk involved, this refers not to whether a harmful event is likely to occur, but rather to the seriousness of the harm which will occur should that harmful event take place. Again, this is based around foreseeability. Thus, in Paris v Stepney Borough Council[1951] AC 367 the claimant, a mechanic, was working for the defendants. He was blind in one eye, and his employers knew this. One day whilst working a chip of metal flew off of a vehicle he was working on, and entered his good eye, leaving the claimant completely blind. It was not an ordinary practice to supply goggles to mechanics at the time. However, the courts held that the applicable standard of care was higher because the defendants were aware of the seriousness of harm that might befall their one-eyed employee, but had failed to act. The claim was therefore successful.

In comparison, consider the same situation, but one in which the claimant was only at risk of losing sight in one eye – because the foreseeable harm is less seriousness, so would be the applicable standard of care. Alternatively, consider a situation in which the defendants were not aware of the claimant’s blindness in one eye (through no fault of their own). In such a situation, it would not be foreseeable that the claimant might be blinded by a single metal chip, and so the applicable standard of care would be lower.

This can be brought back to the lab situation above – we’d like a lab working with Ebola to be held to a high standard of care because the seriousness of a mistake is high. In contrast, a mistake in the school lab would not be serious at all.

In summary, a higher standard of care will be applied to situations involving either a high likelihood of harm or situations involving a high seriousness of harm (or both.)

Cost of Precaution

The courts will take into account the cost of precaution when considering the applicable standard of care. Succinctly: the lower the cost of a precaution, the more reasonable it will be held for the defendant to have taken it, and vice versa. This can be seen in Latimer v AEC Ltd[1953] AC 643. The claimant was working in a factory which because flooded after a heavy storm. The rainwater mixed with an oil-based cooling agent used in the factory, and this left an oily film on the factory floor after the water was drained away. Whilst the defendants spread sawdust over most of the floor, they did not have enough sawdust to cover the entirety of it. The claimant was injured when he slipped on this uncovered floor.

The claim, however, failed. The only way to have prevented the risk would have been to close the affected part of the factory until it had dried out, and this was held to be a disproportionally expensive measure to have taken. As such, not closing the affected section of the factory down did not breach the reasonable standard of care, and the claim failed.

Note: It might be instinctual to conclude that the factory should have had more sawdust on hand to deal with the slipperiness, and that this was the real breach which occurred. However, keep in mind that the reason the entire stock of sawdust was used up was due to the unpredictably heavy rainfall. In other words, the factory’s supply of sawdust was enough to deal with reasonably foreseeable situations.

Therefore, when dealing with a risk, an inquiry should be made regarding the cost of prevention. In ascertaining whether a defendant has acted reasonably, the courts will take into account whether preventative measures could have been taken, and the cost of such measures. 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. Anyone who disagrees should be advised to go bungee jumping with a company who shares their own philosophy on safety!

Exam Consideration: You’re unlikely to have expertise in many of the industries which appear both in relevant cases and problem questions. As such, it’s up to you to come up with a coherent argument regarding reasonable industry behaviour when it comes to the cost of prevention.

Social Value of Activity

Finally, 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. The claimant was a fireman on the way to an accident – some 300 yards away from the fire station itself. A heavy lorry jack was required at the scene of the accident, but the usual vehicle for transporting the jack was unavailable. As a result, the fire chief ordered the claimant and another fireman to lift the jack onto the back of a truck. During the journey there was no way of securing the jack, and when the truck braked, the heavy jack fell onto the claimant’s leg, causing severe injuries.

The courts denied the claim – the emergency nature of the situation and the utility of saving a life outweighed the need to take proper precautions.

However, 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. This can be seen in comparing Watt (above) and Ward v London County Council[1938] 2 All ER 341 – the defendant was a fire engine driver who, whilst on the way to an incident, caused an accident by driving through a red light. The courts held that 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.

Thus, the courts can be seen to apply a lower standard of care where the defendant’s activities have significant social value, although this will not usually justify all behaviour undertaken by the defendant.

It is also worth noting that the social value of a given activity is dependent on the context of that activity. This principle can be seen at work in Scout Association v Barnes[2010] EWCA Civ 1476. The claimant was injured when he ran into a wall whilst playing a game at a Scouting Association, in the dark. The courts were left to ascertain whether the chance of injury that the game presented was in proportion to the social value of the activity. In particular, there existed a question regarding the decision to play the game in the dark (which provided additional excitement but at additional risk.) 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 (in this case, the status of the activity changed once in the dark.) It is therefore necessary to not only question the social value of an activity in establishing the relevant standard of care, but also to question the context surrounding the activity – games played in the dark can become too dangerous, and fire engines which go too fast can become so risky that the benefits of prompt fire service dispatch can outweigh the risks.

Exam Consideration: When it comes to standard of care, examiners will not be looking for a perfect evaluation of the relevant standard of care – although if you can provide such a thing, do so! Instead, the important thing is to demonstrate that you are aware of all of the different factors that the courts consider in finding the standard of care – likelihood/seriousness of breach, cost of precaution and social value.

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 – in other words, the claimant must argue that it was more likely than not that the defendant breached the standard of care.

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 also in which the claimant argues that it is obvious that their injuries were caused by the defendant’s negligence. In other words, the claimant argues that it is more likely than not that the defendant acted negligently, but is unable to detail exactly how the negligence unfolded.

See Scott v London & St Katherine Docks Co  [1865] 3 H&C 596 – the claimant was injured by a sack of sugar which had fallen from a crane which was operated by the defendants. 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. So, applying this test to the above case, the crane was under the control of the defendant, the exact cause of the accident was unknown, but the accident was of a type which would not occur without negligence (cranes don’t usually drop their load suddenly.) Such a situation also demonstrates the usefulness of the principle – it means that claimants can still make a claim, even if they cannot directly explain the negligence which has occurred. For example, in the above case, the breach might have been caused by incompetent operation or poor maintenance; regardless, both of these are negligent acts. As such, the maxim of res ipsa loquitor allows claims to be made even if a ‘true’ narrative of events cannot be provided by the claimant.

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 a claimant (a four-year-old child) was injured when he fell out of an open door on a train. It was held that the train company could not be described as being in control of the doors – 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. Thus, the control element of res ipsa loquitor was not established.

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. As per Barkway v South Wales Transport[1950] AC 185, cases in which two separate versions of events are presented to the judge cannot use the res ipsa loquitor mechanism – the judge must make a decision regarding the most accurate set of facts. In other words, the mechanism can only be applied when the facts are ‘missing’, rather than merely being unclear.

Finally, it must be successfully argued that the event which caused the claimant’s injuries was one which would not have occurred without some sort of negligence. Scott (above) demonstrates this, as does Ward v Tesco Stores Ltd[1976] 1 WLR 810 – the claimant slipped in a puddle of yogurt that the defendant had failed to clean up. The courts held that the accident would not have occurred but for some negligence on the part of the defendant, and so res ipsa loquitor applied.

The same principle can be seen in Cassidy v Ministry of Health[1951] 2 KB 343. The claimant went into hospital for a routine operation on his hand. Whilst he went into hospital with two stiff fingers on the hand, he left with four. Again, whilst it could not be shown in fact that the cause of the harm was the defendant’s actions, there was no other likely cause of the injury, and so this aspect of res ipsa loquitor was fulfilled.

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.

Basically, 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.

Exam Consideration: Do not get questions of breach mixed up with questions of causation (which are discussed in the next chapter)!

Questions of breach revolve around being able/unable to show that the defendant acted negligently.

In contrast, questions of causation revolve around being able/unable to show that the defendant’s conduct led to the claimant’s injuries.


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