#15666 - Breach Of Duty - Tort Law

2. BREACH OF DUTY

Two questions:

• Question of law: what was the appropriate standard of care? How ought D have behaved in the circumstances?

• Question of fact: Did D reach that standard?

What was the appropriate standard of care?

The standard of care is that of the reasonable man which is construed objectively. Clear from:

• Nettleship [1971]: learner driver crashed and injured her instructor. HL: the standard of care owned by a learner driver is the same objective standard owed by every driver. This is so regardless of the learner’s inexperience or the instructor’s knowledge of that experience.

However, in some cases, the objective standard will be modified:

1. Children: the test is what degree of care and foresight can reasonably be expected of a child of D’s age

• Mullin v Richards [1998]: C, 15, was injured at school while ‘fencing’ with D using rulers. C lost her sight in one eye. Hutchinson LJ: the standard is objective, but the question is whether an “ordinarily prudent and reasonable 15-year old schoolgirl in D’s situation would have realised as much.” On the evidence the risk would not have been obvious to D, so she did fall below the standard of care required. Hutchinson accepts that age and experience are relevant factors in varying the standard of care, but questions whether a child’s intelligence can be taken into account.

2. Illness: the extent to which D can be responsible for actions influenced by his physical illness, depend on the extent of his awareness and whether action can be controlled.

• Mansfield v Weetabix [1998]: C’s shop was damaged when D crashed his lorry. D, unknown to him, was in a hypoglycemic state. Leggatt LJ: D did not fall below the standard required because he did not know / could not have known of his infirmity. He would have been at fault had he known of his condition and kept driving.

3. Skill: if D is performing skilled task, the standard varies according to context / how he presents himself. The standard required is that of a reasonable person of D’s profession.

• Bolam [1957]: C suffered fractures on the pelvis while undergoing electro-convulsive therapy. Bone fracture was a known, but slight risk. C claimed D (doctor) was negligent in that he did not use a muscle relaxant. McNair J: “In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time … a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” I.e. if there is an established body of opinion in support, it is reasonable. Here, D could adduce expert evidence to support the method he used, so did not fall below the standard of care required.

• Bolitho [1998]: child died in hospital as a result of D’s failure to attend the child and intubate it to relieve respiratory difficulties. D was able to adduce expert evidence that even had he attended to the child, he would not have intubated. Lord Browne-Wilkinson: In applying the Bolam test, the court must be satisfied that the basis of the body of medical opinion relied upon is ‘logical’. Thus, in a ‘rare case’ where the medical evidence was “incapable of withstanding logical analysis” the judge is entitled to hold that it could not provide the benchmark against which the doctor’s conduct fell to be assessed. This was not such a rare case. “I emphasise… it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.”

  • Bolitho was a response to concerns that the courts were overly relying on professionals to decide cases and that the court should have more jurisdiction to intervene.

  • Keown: “Bolitho is good as far as it goes, but it does not go as far as it should. For one thing, it is not always clear whether medical opinion may be disregarded only if it is illogical. What if the logic is flawless, but the premise unsound or unpersuasive?”

  • Teff: “the measured approach now endorsed by the House of Lords in Bolitho should reduce the risk of legitimizing the lowest common denominator of accepted practice.”

• Medical negligence: duty to inform: Sidaway [1985]: C suffered paraplegia as the result of a spinal cord procedure. The neurosurgeon failed to tell C of the 1% risk of such an occurrence when obtaining consent to the procedure. HL (Lord Bridge): the duty to inform is to be decided by the Bolam test. Under that test, there was no breach. However, there may be cases involving “a substantial risk of grave consequences” in which a judge could conclude that “notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion” a “patient’s right to decide whether to consent to the treatment was so obvious that no prudent medical man could fail to warn of the risk save … some sound clinical reason for non-disclosure.’

• Professional standards (other than medical): The Bolam test with the Bolam gloss has been used in respect of other professions —in Paratus v Countrywide Surveyors [2011] the High Court applied both to a mortgage lender. However, in other professional contexts —e.g. solicitor’s conduct in Edward Wong [1984] —the courts seem more prepared and competent to judge conduct themselves.

Did D breach the standard?

This is essentially a balancing exercise between:

• Magnitude of the risk: this is comprised of the likelihood (or foreseeability) of injury occurring, plus the severity of the injury should it occur.

  • Paris v Stepney Borough Council [1951]: C was employed by the Council at a garage. C had one eye, which was put out by a chip of metal. C argued D was negligent in not providing him with safety goggles. HL (Lord Normand): there was a breach of duty. Although it was not common practice to issue normal employees with goggles, the magnitude of risk to C was greater

• The importance of the activity undertaken by D and the practicability of taking precautions against the risk.

For example,

• Bolton v Stone [1951]: C, a pedestrian, was hit by a cricket ball. HL (Lord Reid): there was no breach; the small likelihood of this happening, the minor risk of future injury, and the cost of raising the fence, meant there had been no breach. “the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of D … would have thought it right to refrain from taking steps to prevent the danger.

• The Wagon Mound (No. 2) [1967]: D’s ship leaked oil during refuelling which was ignited by C’s labourers performing maintenance C’s vessels in Sydney Harbour. C sued for damage to his ships. Privy Council: D breached his duty. Although the risk of fire was small, D should be liable because: (i) the oil leak could easily/cheaply have been prevented; (ii) the leak served no benefit, unlike the playing of cricket in Bolton.

  • Lord Reid: it does not follow from Bolton that all slight risks can be justifiably discounted; rather it means that a reasonable mad can “neglect such a risk if he had some...