Intro: Breach of Duty Outline

 

Fault based vs strict liability

• Question asked- did the D take reasonable care in doing what he did
• Elements of tort:
  • Duty of care: measured generally.
  • Breach: C has to show D hasn’t attained appropriate standard of care required. Sets the bar, if D falls short of this= liable. Fact specific question. Fault element arises here, if D is shown NOT to have breached duty of care, doesn’t matter if he caused C’s loss- won’t be liable.
  • Causation: but for the D would C have been in the situation?
  • Remoteness: was the damage caused too remote?
• Strict liability: where D liable for C despite taking reasonable care. In tort strict liability is exceptional, it’s rare. Tort in Rylands v Fletcher- if you bring something dangerous onto your land and if it escapes and causes damage= liable.
• Why strict liability is imposed:
  • D has chosen to do something risky so has to bear the risk as he’s the best placed to prevent the risk.
  • Statutory imposed e.g. manufacturers of defective products are under strict liability. Dangerous activities e.g. installing nuclear equipment, keeping dangerous animals, aircraft etc. the logic behind strict liability- risk I so high to other people so you’re liable whether or not you take reasonable care.

Basic Test

Blyth v Birmingham Waterworks 1856

‘Negligence is 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 reasonable man features in this definition, so what the reasonable man would or wouldn’t do sets the particular bar.

How do we set the standard for the reasonable man?

1. Morality?
   • What would the moral standard demand of him? Fault in tort has a lot to do with morality, but the legal standard doesn’t mirror the morality standard very well, doesn’t provide clean match.
   • g. Nettleship v Weston– D learner driver, asked friend to help him drive, C agrees only after Ds insurance in place. D terrible driver, turns corner impacts with lamppost, C broke kneecaps. C sues D.
     • Denning: the standard by which we’ll measure D is by the standard of an experienced skilful careful driver, in essence reasonable driver is normal licensed driver.
   • In most cases negligent D measured by normal standard. It causes dissonance in some cases. Sometimes the standard is set too high. Arguably, learner driver not morally liable, mistakes happen why should he be liable, why can’t he be held on the learner standard? Sometimes the standard is set too low. E.g. Donoghue v Stephenson judge transposed moral standard into the law- you must love your neighbour, don’t injure them.
2. Absolute standard?
   • Test too rigid? Bolton v Stone: cricket ground more than 100 yards away from closest home, walls surrounding the ground 17ft high. For more than 30yrs cricket played at the ground and balls only ever hit out of the ground 6 times in that period. C had misfortune of being hit and sued.
     • HoL: no breach of duty. Lord Reed- would the reasonable man have thought it ok not to prevent the danger given that the risk was so small. In this case the risk being so small= D cricket ground not liable.

3. Mathematical formula? The ‘Learned Hand Formula’: USA v Carroll Towing 1947
   • Breach formula= B < PL
     • P= probability of the problem occurring
     • L=gravity if the event occurs
     • This formula saying if the cost of prevention is less than the cost of C suffering serious harm in a likely situation, and if D doesn’t take steps to prevent the event from occurring= breach. It’s an economic analysis of law. However, it’s not possible to give L an accurate value. What measure do you measure gravity of injury by? There’s no standardized manner you could fit it into. Also it’s demeaning and dehumanizing, arguably you would have a rule which says people can harm other people if it’s economically efficient not the kind of attitude we want to encourage in law.

A way of overcoming the difficulties with the moral approach is the:

 Objective standard

Nettleship v Weston 1971

• Illustrates this point. Denning- we’re moving away from the concept of no liability without fault to the concept of on whom should the risk fall? Essentially courts not looking/focusing on subjective fault.

 

The reasonable man can take some:

Personal characteristics of the D:

The standard means objective not subjective, law gives limited concession on characteristics.

 

• Skills

Phillips v Whiteley (William) 1938

• Facts: C wanted to get ears pierced, D jeweller disinfected instrument with flame and disinfectant, unfortunately C infected anways, got puss and abscesses on her neck. Did D owe duty of care?
• Justice Goddard: we will measure the reasonable man standard by the standard of a reasonable jeweller. Jeweller in this case doesn’t hold himself out as surgeon so all that’s required is an ordinary standard of reasonable care.
• Nettleship: D trying to lower standard of reasonable care. Whiteley: trying to raise it, seeing courts trying to achieve a reasonable standard that’s not too high or too low.

 

• Age

Mullin v Richards

• Facts: C’s and Ds 15yo school girls, fencing with plastic rulers, Ds ruler snaps and blinds C, C sues D.
• CoA: no breach of standard of reasonable care, Kittow J- boys of 12 may behave as boys of 12.
• Hutchinson LJ: doesn’t mean it becomes subjective standard. The point is we’re taking into account the D’s child stage of development. Because she has a limited capacity of foresight we’re going to ask what’s normal for a reasonable child of D’s age.

 

• Disability

Mansfield v Weetabix 1998

• Facts: D driving lorry and had low blood sugar, hypoglycemia, he hits c. it’s shown D didn’t know he had this condition. Standard required is that of a reasonable competent driver who’s unaware of a condition that will impair his abilities held he wasn’t negligent. He would’ve been if he’d continued driving after appreciating he had this condition.

 

D’s reasonability isn’t an inanimate standard. Factors courts have considered:

• Timing

Roe v Minister of Health 1954

• Denning case. In 1947 C went for surgery, in administering anaesthetic they did so via lumbar puncture. Anaesthetic was stored in glass containers which were immersed in a solution to reduce risk of infection. Problem with this, solution leaked into glass containers through invisible cracks and contaminated the anaesthetic that was administered to C and caused permanent paralysis. Fact that the solution could leak wasn’t appreciated at the time. C sues and case goes up to CoA in 1954, at that time there’d been an advance in medicine.
• Denning: we mustn’t look at 1947 incident with 1954 spectacles. It’s easy to be wise after an event and condemn as negligence that which was merely a misadventure. D held not liable. Can’t use retrospective reasoning.

 

• Probability of harm

Bolton v Stone: D cricket ground not liable

Wagon Mound No2 1967

• Facts: furnace oil leaked into Sydney harbour from a ship, other ships were being repaired and from the welding and cutting going on, sparks flew onto the surface and ignited some floating cotton pieces, setting fire the leaking oil from the Wagon Mound.
• First legal point: brought by dock owners- how remote must the action be from the damage caused. Assuming the D could’ve reasonably foreseen that the oil could be ignited would they be liable for all damage. Case brought by owner of two ships burnt in the accident.
• Wagon mound 2: was there a breach by owners of the Wagon Mound. The question to be asked- would the reasonable man having knowledge and experience of the chief engineer have known that there was a risk that the oil would ignite? Was it probable that the leak would cause a fire to occur?
• Answer: yes, plus it was easy to prevent= wagon mound liable so they should’ve stopped the leak, so damage not too remote.

Whippey v Jones 2009

• Facts: D walking dog let it loose, dog knocks down jogging C, C lost balance fell down slope broke ankle. Did D owe duty of care? Yes. Was there a breach? Para 16- no breach if the possibility of injury is very remote i.e. if there’s a small probability= no breach= D not liable.

 

• Gravity of harm

Paris v Stepney Borough Council 1951

• Facts: C had one eye and worked in D’s garage. D knew C was blind in one eye, yet didn’t provide goggles for C, one day ship from bolt flew into C’s eye. C sues employer arguing it wasn’t normal practice to provide goggles to workmen, therefore no breach.
• HoL: relevant question= what precaution would a reasonable man take? D held liable as the risk that presented itself to C was higher than that to other workmen. D should’ve done more. HoL taking seriousness of the consequences.

 

• Cost of precautions

Latimer v AEC 1953

• Facts: C worked in D’s factory, exceptionally heavy rainstorm flooded shop floor. D mopped up water where possible and put up signs and the sawdust (which was called mystique apparently). They couldn’t cover the whole floor so they put saw dust in places frequented by workmen I order to prevent slipping.
• First instance: D should’ve shut the factory since it would provide an unsafe environment for workers. D appealed, HoL held there was no breach as the danger caused didn’t justify shutting the factory= no breach as the D’s did all they could.

 

• Context

Woolridge v Summer 1963

• Facts: C cameraman at horse race had very little experience with horse. He was in the ring where the competition was held, he was advised to leave the ring he was like no. during the competition D’s horse went towards C who panicked, stumbled and injured himself. C sues the owner of the horse.
• CoA: no breach. Lord Diplock- the rider of the horse can assume spectators are knowledgeable, the spectators assume the risk, D won’t be liable unless he was reckless.

 

Blake v Galloway 2004

• Facts: C friends with his friends, they were engaged in horseplay; C threw a piece of bark at D and hit him in the shin. D picked it up and threw it back, hit C in the eye causing serious injury.
• CoA: horseplay was good spirited and natured, no animosity so no breach. There’s a convention of tacit agreement when you’re involved in such activities.

 

• Utility

Watt v Hertfordshire 1954

• Facts: accident where a woman was trapped under a lorry, it was only a short distance to the scene so they hired a lifting jack from nearby. Problem- the special vehicle that would transport the machine wasn’t available, so chief fireman orders the C to carry the machine on a truck, the truck not designed to carry lifting jacks, so C and colleague held onto the machine. Truck braked, machine slips and injures C’s feet.
• Court: no breach, D trying to do something in a real emergency. Denning- the commercial end to make profit is very different from the human end t save a life.
• Compensation Act 2006 s1: in deciding whether an act has been negligent, court can consider whether it; a) prevents a desirable activity from being undertaken at all, to a particular extent or in a particular way, or b)discourages persons from undertaking functions in connection with a desirable activity.

 

• Professional standards

Esp: trainee doctors do we hold them to the same standards as qualified doctor?

Wilsher v Essex area Health Authority 1987 (CoA)

• V important HoL decision concerning question of causation in terms of breach look at CoA decision.
• Facts: Jr Dr inserts catheter into baby’s vein, as a result of excessive oxygen being pumped into baby’s blood, baby blinded. Court split over decision.
• Majority: we judge by the standard of a normal doctor, we look at the standard of the post not the rank or status of the job. We don’t care that he’s a junior, we care about the fact that he’s a Dr. So he was held liable to the standards of his more experience colleagues didn’t want inexperience to act as defence to negligence.
• Dissenting: Lord Browne Wilkinson disagreed, he would hold a trainee or jr to those standard. Trainee Drs training precisely to get the experience of a Dr, so we should measure them by that standard of a reasonable trainee Dr.
• To what extent does fault play a role in negligent actions, how do we determine relevant standard for professional standard?

 

Bolam v Friern Hospitl Management Committee 1957

• Facts: C undergoing electroconvulsive therapy for mental illness, Dr didn’t give C relaxant as a result C suffers serious fracture. Opinion in medical profession divided over whether such relaxant should be given to patients undergoing such therapy. If relaxant given there was a small risk of death, if not there there was a small risk of injury.
• Judge: when we are dealing with skills of professionals we cant look at the reasonable man. So there’s no breach if D acted in accordance with practice accepted by responsible body of skilled men in that particular area. So long as some professional body accepts what the D as being reasonable criteria= D acted appropriately. Is this too low a standard?

 

Bolitho v City and Hackney 1998

• This case modifies Bolam rule slightly. 2yo boy had breathing problems, Drs negligently fail to attend to boy and didn’t incubate him, boy suffers total respiratory failure, suffers brain damage and dies. Drs say even if they had attended to him, they wouldn’t have incubated him, unlikely that any Drs would’ve done so.
• Lord Browne-Wilkinson: it wasn’t enough that some body of Drs justified what Dr did. He modifies the Bolam test, court now has to be satisfied that such a body subscribes to the view on a logical basis; it has to be reasonable, responsible and respectable. Today- Dr can choose a number of views provided that the body has logical reasoning.

 

Moy v Pettman Smith 2005

• Facts: C medical negligence against authority, D was her counsel (barrister). D wanted to introduce some evidence to increase amount of damages that were claimed, before the application the health authority offers settlement. D barrister advises C not to take the settlement and proceed to trial as he though evidence would be allowed to be adduced. Later became apparent court wouldn’t allow it. At that point health authority had lowered settlement offer, and C force to take it.
• HoL: D not liable because there’s a respectable body of opinion that says C pays advocate for their opinion not their doubts, as a lawyer you can give your opinion, and not take doubtful approach to case.

 

Res ipsa loquitor

The thing speaks for itself.

principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

Elements:

1. The injury is of the kind that does not ordinarily occur without negligence.
2. The injury is caused by an agency or instrumentality within the exclusive control of the defendant.
3. The injury-causing accident is not due to any voluntary action or contribution on the part of the plaintiff.
4. Defendant’s non-negligent explanation does not completely explain plaintiff’s injury.