#2308 - How Is A Breach Of The Duty Of Care Established - Tort Law

How is a breach of the duty of care established?

Establishing a Breach

• Duty of care is owed

• D has fallen below the standard of what which is reasonable in that circumstances

  • Giliker:

    • Reasonableness= flexible to accommodate infinite variety of cases

    • Decisions in each case = useful guides, but not set down laws.

      • Otherwise law becomes too rigid.

The Reasonable Person Test

• Lord Macmillan:

  • Objective element = Reasonable man presumed to be free from over-apprehension and from over confidence.

  • Subjective element = what the reasonable person would have done in D’s external circumstances (not D’s personality/relationships/education)

• Nettleship v Weston [1971]: W injuring N in car accident during N giving lessons to W

  • Lord Denning MR (maj): The standard for driving a car is very high

  • It is no defence to say you are a learner driver

    • As the standard you must drive at is that of an experience driver who makes no mistakes.

  • Equally, even if the passenger knows you are not of a high standard, or drunk, or one-eyed

    • And voluntarily agrees to be in the car with you

      • You still owe him a duty of care to drive like a reasonable and prudent driver

• Salmon LJ(dis):

  • A motoring duty of care springs from relationship which a passenger gets in the car

    • If the driver is a learner, this cannot entitle a passenger or instructor to expect the driver to discharge a duty of care or skill

      • which the passenger (not a pedestrian or other road user) knows the driver is incapable of discharging.

What standard of care is “reasonable”?

• Judge Learned Hand: have to weigh up all these factors against each other when determining whether breach has occurred:

  • Forseeability of harm

    • If the harm C suffers is not foreseeable, D will not be liable

    • This is because if it wasn’t foreseeable, the reasonable person could not have foreseen it

      • Equally, even if it was foreseeable, if it wasn’t reasonably foreseeable then no liability imposed

  • Magnitude of risk

    • Bolton v Stone [1951]: Z hits cricket ball out of pavilion, hits unlucky C on head and injures her. Cricket ball had come out of pavilion about 3 times in 10 years.

      • Lord Reid

        • Although risk of harm to a person might be foreseeable,

          • if the risk of damage to a person 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

              • then the conduct cannot be described as negligent.

  • Seriousness of consequences

    • Paris v Stepney Borough Council [[1951]

      • Guy blind in one eye tries to dismantle something, fragment flies into his good eye and blinds him.

        • Lord Simonds (maj):

          • Breach can be found in two ways

            • 1. to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances

            • OR 2. to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it

          • Reasonable person adjusts standard of care depending on what the circumstances and people are in front of him,

            • and the seriousness of a breach in that context.

  • Burden of taking precautions – general circumstances

    • Smith v Littlewoods [1987]

      • Lord Mackay:

        • If you anticipate/ought to anticipate a small risk

        • Unless a reasonable person would say you had a valid reason for not negating the risk (e.g. too expensive/ stupidly inconvenient to rectify vs. the small risk of it happening)

          • Then you will also be held as negligent.

    • Wagon Mound (No.2) [1967]:

• Lord Reid:

  • A reasonable man would only neglect such a risk if he had some valid reason for doing so, weighing up the risk against the difficulty of eliminating it.

    • Bolton v. Stone did not alter the general principle that a person must be regarded as negligent

      • if he does not take steps to eliminate a risk which he knows or ought to know is a real risk.

  • Only added qualification that it is justifiable not to take steps to eliminate a real risk if it is small

    • and if the circumstances are such that a reasonable man, careful of the safety of his neighbour,

      • would think it right to neglect it.

  • Common Practise

    • Giliker: failure to conform to common safety practise may give a lead to liability

      • But only if C can prove that had D acted to common safety practises, C would not have suffered harm.

Where reasonable person test takes account of D’s position and is this modified:

• Those who profess to have some skill

  • E.g. Doctors, must then act like a reasonable person with that knowledge and professional skill

    • E.g. Surgeon must act like a reasonable surgeon, taking into account above factors. Lawyer must act like reasonable lawyer.

      • Wilsher v Essex Health Authority [1987]

        • If D tries to fill a specific post, regardless of his status, he will be held to the standard of that post.

        • E.g. junior doctor performing more senior post will have to discharge the post at the level of a reasonable person skilled in that senior post,

          • NOT his own level of the reasonable junior doctor filling in.

      • Lord Bridge in Sidaway v Bethlem Royal Hospital [1985]

        • People should be held to the standard of skill they profess to have

          • Thus a neurosurgeon wouldn’t be held to the standard of a reasonable doctor

            • But a reasonable neurosurgeon.

      • Giliker: Allowances made where D is an amateur and does not hold himself out to have skill of a professional.

  • Relevance of common practise and professional opinion taken into account in determining breach

    • Bolam v Friern Hospital Management Committee [1957]

      • If X acts like a distinguished body of his profession would suggest he should

        • Even if some others of profession would suggest X should have acted differently

          • Then this can be taken as the reasonable standard of practise

            • And X is therefore not negligent

    • BUT Bolitho v City and Hackney HA [1998]

      • Lord Brown Wilkinson:

        • In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion.

          • But if, in a rare case, it can be demonstrated that the evidence supporting the professional opinion is not capable of withstanding logical analysis,

            • the judge is entitled to hold that the body of opinion is not reasonable or responsible

• Children

  • Giliker: The conduct of children is judged to the standard of a reasonable child of D’s age

    • But it is still an objective one.

      • Kitto J: It is no answer for a child, no more than an adult, that this particular D was slow witted, quick tempered or inexperienced [beyond the natural inexperience of D’s childish age]

      • Mullin v Richards [1998]

        • Girls fenced with rulers, ruler broke and fragment flew into eye of C, blinding.

        • Held that reasonable 15 yo would not have reasonably foreseen risk – was common game and no warning about dangers before.

• Emergency

  • Giliker: standard of care is lowered in these cases to take into account the exceptional circumstances

  • Ng Chun Pui v Lee Cheun Tat [1988]

    • D was driving a bus when a vehicle cut in front of him, D swerved and hit bus C and X riding on, injuring them.

      • Held CoA that was reasonable in the circumstances, although benefit of hindsight say perhaps different action could be taken.

  • Rigby v Chief Constable of Northamptonshire [1985]

    • But police apprehending criminal firing CS canister into gun shop = liable for damage caused to...