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2.4.3 Breach of Duty Lecture - Hands on Example

Question 1:

The Hawkins Laboratory is undertaking research on a weaponised strain of the common cold. This research is defensive in nature – the lab seeks to prevent the use of the common cold as a bio-weapon. As a result, the lab works with a number of dangerous samples of the virus.

One day, a breach in containment leads to an outbreak in a nearby town, killing several residents.

The residents bring a case against the laboratory. In the course of the investigation, it is found that the breach was ultimately caused by a lack of maintenance of the lab’s decontamination system. Although the lab was aware of the issue, it did not fixed it, citing the exorbitant cost of hiring a decontamination consultant as the reason.

Identify the factors which the court will use in determining the applicable standard of care for Hawkins Laboratory. Do not discuss the doctrine of Rylands v Fletcher.

Question 2:

Jonathan and Dustin are participating in a charity car race.

Jonathan has only just passed his driving test, and so is unsure on the road. He fails to realise he is in the wrong gear at the start of the race, and accidentally reverses, crushing the foot of a spectator standing behind him.

Dustin is a relatively competent driver. However, unbeknown to Dustin he has an undiagnosed case of narcolepsy, and so is prone to under-going ‘micro-sleeps’: moments when Dustin temporarily blacks out and reawakens a second or two later. Dustin suddenly falls into a micro-sleep at the end of the race and when he re-awakes, he finds he has crashed into the podium, utterly destroying it.

Both drivers have cases brought against them.

Identify the individual characteristics of the drivers which will affect the standard of care applied to the defendants at trial.

Answer 1:

The courts will broadly consider three different factors in ascertaining the expected standard of care: the magnitude of the risk involved, the cost of taking precautions, and the social value of the activity involved.

In terms of the magnitude of risk involved, this depends on two factors: the likelihood of a risk occurring, and the potential seriousness of that risk once it manifests.

The likelihood of the risk occurring in the case of Hawkins Laboratory is low, and this means the applicable standard of care will also be lowered – as per Bolton v Stone [1951] AC 850 (and twin-case Miller v Jackson[1977] QB 966), the lower the risk, the lower the applicable standard of care will be. In the case of Hawkins lab, it is dealing with a less likely risk, rather than a more likely risk. It can therefore be favourably compared to Bolton, and distinguished from Miller.

However, the seriousness of a containment breach is relatively high – as demonstrated by the deaths caused by the breach. As per Paris v Stepney Borough Council[1951] AC 367, a higher standard of care applies when the risks involved are heightened. The risks presented by the lab’s work is high, and therefore so will the standard the care be.

The cost of taking precautions will also affect the applied standard of care. As per Latimer v AEC[1953] AC 643, defendants are not mandated to act perfectly, they must only take reasonable precautions against risk. Whilst the Lab cites cost as a reason it did not properly maintain its decontamination equipment, this is unlikely to have a material effect on the expected standard of care – it is reasonable to assert that a bio-weapon lab should have suitable decontamination equipment, even if this comes at some cost.

Finally, the social value of the activity undertaken will affect the applicable standard of care, as in Watt v Hertfordshire CC[1954] 1 WLR 835. The work of the lab appears to be socially valuable – it is, after all, aimed towards protecting lives. This means that the standard of care expected of the lab will be lower.

In summary, whilst the lab is dealing with an unlikely risk, it is a serious one. Whilst pre-emptively acting to prevent the containment breach would have been expensive, it is arguably reasonable to demand a bio-lab takes sufficient precautions when dealing with a deadly virus. There is a distinct utility to the actions of the lab, but this does not justify its negligent lack of maintenance – the social utility of its actions would still exist had the lab properly repaired its decontamination system.

Answer 2:

Although Jonathan is a newly qualified driver, his inexperience will not act as a defence. Under Nettleship v Watson[1971] 3 WLR 370, Jonathan is expected to act with a reasonable level of skill in the activity he is undertaking. This standard will not change just because Jonathan had only just learned how to drive. As such, Jonathan is likely to be found to have breached the applicable standard of care – a reasonably competent driver would not drive in reverse when they need to go forwards.

Dustin’s situation on the other hand can be likened to that in Mansfield v Weetabix[1998] EWCA Civ 1352. He is unaware of his medical condition, and the medical condition can be described as the cause of the accident. As such, the applicable standard will be that of a reasonably competent driver suffering from undiagnosed narcolepsy. Much like in Mansfield v Weetabix, this means that Dustin is unlikely to be held liable for the accident – he had no control over his medical condition and was not aware of it. Dustin will only be held liable if the court finds that someone with his condition could still have reasonably acted to prevent the accident from taking place.


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