4.

Breach of Duty
Law - Tort
Introduction
Once the plaintiff has established that the defendant owed him a duty of care he
must show that the defendant was in breach of duty. The court will look at the
defendant’s conduct and judge whether it fell below the standard. If it did, then
the conduct will amount to negligence and the defendant will be in breach of duty.

“Negligence is the omission to do something which a reasonable man guided upon

those consideration which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do”

Everyone is judged by the same standard the only exceptions being skilled
defendants, children and the insane and physically ill.

What is the standard to be expected from the defendant?

There are 2 standards namely the reasonable man standard and the professional
standard. The reasonable man standard is the conduct of the defendant called into
question involves ordinary skill. The professional standard where the conduct of the
defendant called into question involves a special skill.

Has the defendant come up to the standard?

• State of knowledge
What is the defendant’s knowledge at the point of the negligent Roe v. Minister of
Health [1954] – Lord Denning, “We must not look at the 1947 incident with 1954
spectacles”. The defendant will only be liable if the reasonable man would have
foreseen damage in the circumstances prevailing at the time of the alleged breach
of duty.

• Magnitude of risk
The greater risk of harm – the real likelihood in which the injury can be inflicted:
Lord Reid contrasted Bolton v. Stone [1951 with Miller v. Jackson [1977] and the
risk of greater harm ie the seriousness of the injury that is risked: Paris v. Stepney
Borough Council [1951]; Fowles v. Bedfordshire CC [1995]. The greater the injury
that is risked the greater the precautions that will be required.

• Practicability of precaution
Lord Dunedin in Fardon v. Hercourt & Ravington: “People must guard against real
possibilities but are not bound to guard against the fantastic possibilities”. See:
Latimer v. AEC Ltd [1953] and Wilson v. Governor of Sacred Heart Roman Catholic
Primary School [1997]

• Utility of conduct
Watt v. Hertfordshire CC [1964] – if what the person is doing has moral merit that
must be taken into account to determine whether he has come up with the standard
of care required of him.

The Reasonable Man

A potential defendant will be negligent by falling below the standards of the
ordinary reasonable person in his/her situation, ie by doing something which the
reasonable man would not do or failing to do something which the reasonable man
would do.

See the statement of Alderson B in Blyth v Birmingham Waterworks Co (1856): It

can also be defined as “the omission to do something which a reasonable man guided
upon those considerations which ordinarily regulate the conduct of human affairs
would do or doing something which a prudent and reasonable man would not do”

The most popular definition of the reasonable man is that he is the ordinary man,
the average man, or the man on the Clapham omnibus (Hall v Brooklands Auto Racing
Club [1933].

A. The Objective Standard

The court will decide if the defendant fell below the standard of the reasonable
man. The standard of care expected from this hypothetical character is objective;
not taking into account the characteristics or weaknesses of the defendant in the
instant case.

For example, the standard of care to be expected from a learner-driver is the

same as that required by a qualified driver: Nettleship v Weston [1971]. Likewise, a
householder doing DIY work must not fall below the standard to be expected of a
reasonably competent carpenter in doing the work: Wells v Cooper [1958].

Unforeseeable Harm
If the reasonable person would not foresee a harmful consequence of an action,
then a defendant will not be negligent in failing to take precautions. See: Hall v
Brooklands [1933]; Glasgow Corporation v Muir [1943]; Roe v Minister of Health
[1954]

Factors to be weighed in establishing breach

Magnitude of Harm
The court will consider the likelihood of harm occurring. The greater the risk of
harm, the greater the precautions that will need to be taken.

Compare the following cricket ball cases:

Bolton v. Stone [1951] Miller v. Jackson [1977]
A cricket ball has been hit out of a cricket ground six times in 28 years into a
nearby, rarely used lane. On the seventh occasion, it hit a passerby in the lane. A
cricket ball was hit out of a ground eight to nine times a season.
It was held that the chances of such an accident occurring were so small that it
was not reasonable to expect the defendant to take precautions against it
happening. The defendant was held to be negligent as it was reasonable to expect
the defendant to take precautions against it happening.

Consider the following question: 'What is the possibility of harm being caused by
road works to a blind pedestrian?' In Haley v London Electricity Board [1964]
where the blind plaintiff fell into a ditch dug by the defendant; precautions taken
by the defendant were sufficient for a sighted person. It was held that there was
duty of care owed to all persons using the highway and this included blind persons;
their presence on the highway was reasonably foreseeable; there was a breach of
this duty to the plaintiff as the barrier provided was not suitable for a blind
person. Sometimes, the risk of harm may be low but this will be counter-balanced
by the gravity of harm to a particularly vulnerable claimant.

In Paris v Stepney Borough Council [1951], the House of Lords held that an
employer had a duty to provide goggles for a one-eyed man even though it was not
necessary to provide goggles for a workman with two eyes. Total blindness is a much
greater risk than the loss of one eye.

Defendant’s Purpose
If the defendant's actions served a socially useful purpose then he may have been
justified in taking greater risks. See: Daborn v Bath Tramways [1946].

In Watt v Hertfordshire County Council [1954], the plaintiff was a fireman and
part of a rescue team that was rushing to the scene of an accident to rescue a
woman trapped under a car. The plaintiff was injured by a heavy piece of equipment
which not been properly secured on the lorry on which it was traveling in the
emergency circumstances.

It was held that it was necessary to ‘balance the risk against the object to be
achieved’. The action for negligence failed as the risk of the equipment causing
injury in transit was not so great as to prevent the efforts to save the woman’s life.

Practicability of Precautions
The courts expect people to take only reasonable precautions in guarding against
harm to others. In Latimer v AEC Ltd [1952], a factory became flooded through no
lack of care on the part of the defendant and oil was loosed onto the floors
rendering them slippery. Sawdust was laid to cure this but one small area was left
uncovered due to insufficiency of sawdust; the plaintiff slipped on an uncovered
area injuring himself.

It was held that the defendant was not under a duty to close the factory; this was
too onerous a precaution in view of the small risk involved.

General Practice
If the defendant acted in accordance with the common practice of others this will
be strong evidence that he has not been negligent. For example, see: Gray v Stead
[1999]. However, this will not prevent the courts from declaring a common practice
to be negligent in itself (Paris v Stepney BC [1951].

B. The Professional Standard

Medical Negligence can come in the form of:
• Treatment & Diagnosis
• Duty of disclosure
• Duty to answer questions
• Doctor’s duty in the context on non-therapeutic eg contraception, elective
procedures, plastic surgeries, weight loss programme, etc
• Doctor’s duty to warn patients

Special standards appropriate to professionals

Treatment & Diagnosis
Skilled defendants are judged by higher standards than the ordinary defendant.
The professional standard was applied in the case of Bolam v. Friern Hospital
Management Committee [1957] McNair J: “when you get a situation which involves
the use of some special skill the test is not the test of the man on that Clapham
omnibus. The test is the standard of the ordinary skilled man exercising and
professing to have that skill”.

Professionals will be judged by the standard of the ordinary skilled man exercising
and professing to have that special skill. This is the basis of the 'Bolam test'. It
can be seen that skilled defendants must meet a higher standard than the ordinary
person and this is an exception to the rule that everyone is judged by the same
standard.
Bolam v. Friern Hospital Management Committee [1957] A doctor was not negligent
if he acted in accordance with a respectable body of opinion merely because
another body of opinion took a contrary view. It was also held that a doctor could
not be criticized if he believed dangers of treatment were minimal and did not
stress to the patient.
Sidaway v. Bethlem Royal Hospital Governors [1985] The plaintiff suffered from
neck pains and was advised by her surgeon that she should have an operation. The
surgeon did not tell her that there was a one per cent risk of damage to the spinal
cord from such an operation. The plaintiff consented to the operation but suffered
damage to her spinal cord without negligence on the part of the surgeon. It was
held that a doctor was under a duty to inform a patient of special / real risks but
this is subject to an overriding duty to act in the patient’s best interest.
Bolitho v. City and Hackney Health Authority [1997] A two-year old boy suffered
brain damage as a result of the bronchial air passages becoming blocked leading to
cardiac arrest. It was agreed that the only course of action to prevent the damage
was to have the boy intubated. The doctor who negligently failed to attend the boy
said that she would not have intubated had she attended. There was evidence from
one expert witness that he would not have intubated whereas five other experts
said that they would have done so. The House of Lords held that there would have
to be a logical basis for the opinion not to intubate. This would involve a weighing of
risks against benefit in order to achieve a defensible conclusion. This means that a
judge will be entitled to choose between two bodies of expert opinion and to reject
an opinion which is ‘logically indefensible’.
An error in clinical judgment cannot be sued [Whitehouse v. Jordan [1980]]: Lord
Denning, through a distinction between an error of clinical judgment and negligence
he warned against what he saw as the dangers of imposing too high a standard of
care upon doctors.

Whitehouse v. Jordan [1980]

The defendant a senior hospital registrar was in charge of the delivery of the
plaintiff as a baby in a high-risk pregnancy. After the mother has been in labour for
22 hours the defendant decided to carry out a test to see whether forceps could
be used to assist the delivery. The plaintiff was born with severe brain damage and
acting by his father brought the action in negligence against the defendant alleging
want of professional skill and care by pulling too hard and too long on the forceps
and so causing the brain damage.

Who decide whether the professionals have come to the standards? Is it the court
or the profession itself? People holding themselves out as having a specialist skill
will be judged by the standards of a reasonably competent man exercising that skill.
This is known as the Medical Standards Test:
• The medical profession that decide whether the doctor has come up to his
standards;
• All that a medical practitioner has to do is to put forward a school of thought
that is reasonable, responsible and respectable it would have done what he did;
• If he is able to do so then the court would have no choice but to accept its view.
They cannot choose between competing school of thoughts even if the view is of
the minority school of thought.

The potential harshness of the objective standard for skilled defendants is

illustrated in the case of Wilsher v Essex Area Health Authority [1986] when it
was stated that a young, inexperienced doctor is judged by the standards of a
competent experienced doctor even though by definition he is unable to attain that
standard. The decision was overruled on the issue of causation in 1988] and a retrial
ordered.

In Philips v William Whiteley [1938], the court rejected the idea that a jeweler who
carried out an ear piercing operation should be judged by the standard of a surgeon
but instead the court said that she should be judged by the standard of a
reasonably competent jeweler carrying out the particular task.

In Nettleship v. Weston [1971], a learner driver was judged by the standard of a

‘competent and experienced driver’ as she held herself out as possessing a certain
standard of skill and experience. The court felt that a uniform standard of skill was
preferable because of the practical difficulty of assessing a particular person’s
actual skill or experience.

Duty of disclosure
If there is no disclosure then consent is not given. But what if the patient knows
something but not everything of about the treatment proposed? How much the
doctor does have to reveal? And does a failure to reveal mean that no valid consent
can be given, so that the doctor is liable in assault, or should it be seen as aspect of
negligence so that the action will only lie in negligence. So long as the doctor
informs the patient in broad term the nature of the procedure, then consent is
valid. See: Chatterson v. Gerson [1981]
What standard applies? Medical Standard Test [Pro Doctor] or the Informed
Consent Test [Pro Patient]? If the patient was not given sufficient information
upon which he could reach an informed decision whether to accept the treatment
proposed or not then he was unable to give a valid consent. The courts have
variously said,
• “To bind the disclosure obligation to medical usage is to arrogate the decision on
revelation to the physician alone. Respect for the patients right of self
determination on particular therapy demands a standard set by the law for the
physicians rather than one which physicians impose upon themselves”;
• “The duty to disclose or inform cannot be summarily limited to a self-created
custom of the profession to a professional standard that may be non-existent or
inadequate to meet the informational needs of a patient”;
• “Risk disclosure is based on the patients’ right to determine what shall be done
with his body. Such right should not be at the disposal of the medical community”.

The House of Lords held that there is no doctrine of informed consent in English
Law.
Lord Diplock Prepared to apply Bolam Test
Lord Bridge Prepared to override Bolam Test
Lord Scarman Dissented

Duty to answer questions

When questioned specifically by a patient of apparently sound mind about risks
involved in a proposed treatment the doctor must answer as truthfully as fully as
the questioner requires: Blyth v. Bloomsbury Health Authority [1985]

Non-therapeutic Treatments

Gold v. Haringey Health Authority [1988]

When Mrs. Gold entered her third pregnancy, she and her husband decided to have
no further children after that one. They reached a provisional decision that he
would be vasectomized. But when she informed the consultant at the antenatal
clinic that she wanted no more children he told her that a sterilization wild be
arranged for her.

Nothing was said about the other contraceptives option and about the failure of
the sterilization. There was evidence to the effect that in 1979 there was a
responsible body of medical opinion that would not have spoken of the options or
the failure rate. The Bolam test was applied.

Duty to warn patients

The Court of Appeal held that a doctor who had failed to inform his patient of a 1 –
2 % risk of nerve root damage as a result of spinal injury was in breach of his duty
of care towards the patient: Chester v. Afshar [2002]

Other Breach of Duties

Standard applied in sporting situations
Spectators at a sporting event take the risk of any injury from competitors acting
in the course of play, unless the competitor's actions show a reckless disregard for
the spectator's safety.

In Woolridge v Sumner [1963], a momentary lapse on the part of a showjumper did

not make him negligent. Participants in sport owe a duty of care to each other which
can be breached as in: Condon v Basi [1985].

A referee who oversees a match may also owe a duty of care to see that players
are not injured: Smoldon v Whitworth [1997]. The court held that the rugby
referee’s level of care to a participant in a sporting event was that appropriate in
all the circumstances.

In Caldwell v. Maguire and Fitzgerald [2001], it was held that the defendant owed a
duty to exercise reasonable care in the circumstances to avoid injury to fellow
contestants but that given the prevailing circumstances the threshold of liability in
practice is high.

Standard applied to children

Children cannot plead infancy as a defence to a tort. However, children and young
people will usually be judge by the objective standard of the ordinarily prudent and
reasonable child of the same age.

In Mullins v Richards [1998], two 15 year olds were playing with plastic rulers when
one broke and a piece of plastic entered the plaintiff’s eye. The test was whether
the risk of injury would have been foreseeable to an ordinary prudent and
reasonable 15-year old girl. If a young person deliberately commits an action with
an obvious risk of harm, they may be judged by the standards of an adult.

Held: Although the test of forseeability in negligence was an objective one where
the defendant was a child the question for the judge was not whether the actions
of the defendant were such an ordinarily prudent and reasonable adult in the
defendant’s situation would have realized gave risk to a risk of injury but whether
an ordinarily prudent and reasonable child of the same age as the defendant in the
defendant’s situation would have realized as much.

See: Williams v Humphrey, The Times, February 20 1975. Alternatively, school

authorities or parents, may be liable in negligence for failing to adequately
supervise a child who causes harm to another. See: Carmarthenshire County Council
v Lewis [1955]; Barnes v Hampshire County Council [1969].

Standard applied to design

In Nye Saunders v. Alan Birstow, the Bolam test was expressly applied to
architects as it was held that there will be no negligence if a “responsible body of
architects” would have deemed appropriate the conduct of the architect in issue in
the proceedings.
Proof of Negligence

Importance of evidence in establishing proof of breach

The claimant bears the evidential burden of proving, on the balance of probabilities,
that the defendant was negligent. However, in some situations a claimant may be
able to rely on the maxim res ipsa loquitur, i.e. the thing speaks for itself
illustrated in the case of Scott v. London & St Katherine’s Dock [1865].

By this rule of evidence, the mere fact of an accident occurring raises the
inference of the defendant's negligence, so that a prima facie case exists. "You
may presume negligence from the mere fact that it happens" (Ballard v North
British Railway)

When does the maxim 'Res Ipsa Loquitur’ applies?

There are three conditions that must be fulfilled before res ipsa loquitur applies.
(a) The defendant must have control over the thing that caused the damage. In
Eason v London & North Eastern Railway [1944], the railway company could not be
said to be in control of railway doors on a journey from Edinburgh to London
because of the possibility of interference by a third party.

(b) The accident must be such as would not normally happen without carelessness.
In Scott v London and St Katherine Docks (1865), it was said that the accident
must have happened in ‘the ordinary course of things’.

(c) The cause of the accident must be unknown: Barkway v South Wales Transport
[1950].

The effect of the doctrine of ‘Res Ipsa Loquitur’

There are two opinions as to the effect of res ipsa loquitur:

(a) An evidential burden of proof is cast on the defendant. It raises a prima facie
inference of negligence, which requires the defendant to provide a reasonable
explanation of how the accident could have occurred without negligence on his part.
If the defendant provides an explanation, the inference is rebutted and the
claimant must prove the defendant's negligence: Colvilles Ltd v Devine [1969].

(b) It reverses the burden of proof requiring the defendant to show that the
damage was not caused by his failure to take reasonable care: Henderson v Henry
Jenkins & Sons [1969]; Ward v Tesco Stores [1976] where a woman slipped on some
spilt yoghurt on the supermarket floor.

The opinion of the Privy Council is that burden of proof does not shift to the
defendant because the burden of proving negligence rests throughout the case on
the claimant: Ng Chun Pui v Lee Chuen Tat [1988] where a vehicle had suddenly gone
out of control crossed the central reservation and collided with a bus. The
defendants in response to reliance to the res ipsa doctrine gave evidence to the
effect that an untraced vehicle had cut into the lane when the defendant’s vehicle
was traveling and caused it to swerve out of control.