Breach of Duty of care

P R E PA R E D B Y: M S S U LO S H I N Y S E G A R A N
Breach of Duty
The second element of the tort of negligence

Burden of proof is on the claimant – the claimant must prove on a balance of

probabilities that the defendant’s conduct fell below the standard of care
expected of him, see: Blyth v Birmingham Waterworks

To determine – look at

Standard of care expected of the Whether the defendant has

defendant come up to the standard

question of law question of fact

NOTE: Breach of duty of care essentially means
that the defendant has fallen below the
standard of behaviour expected in someone
undertaking the activity concerned.
So, for example, driving carelessly is a breach of
the duty owed to other road users, while bad
medical treatment may be a breach of the duty
owed by doctors to patients.
There are two questions that
must be answered in order to
establish breach of duty of
care:

What is the standard of care that is

expected of the defendant?

Has the defendant come up to the

standard that is expected of him?
 The standard of care is a question of law that
is decided by the judge. Falling below that
standard is a question of fact, which is proved
by looking at the factual evidence.
Standard of In court, the defendant is judged by what the
care reasonable man would do.
Even though the test refers to the reasonable
man, in fact, it applies to both male and
female defendants.
In negligence –

◦ the standard of care is not perfection but

reasonableness

‘… 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’ – Blyth v
Birmingham Waterworks

◦ the defendant is not obliged to take absolute

precautions only reasonable ones

◦ a defendant who takes measured risk is not

negligent
How is reasonableness measured?
Look at the conduct of a reasonable man in similar
circumstances

Who is a reasonable man?

• ‘A reasonable man is an average man, an ordinary man a man on the

Clapham omnibus’ – Greer J in Hall v Brooklands Auto-Racing Club
• Glasgow Corporation v Muir (1943): ‘the reasonable man is presumed
to be free from both over apprehension and from over confidence’

Bearing in mind that a reasonable man is not perfect – he

makes mistakes
• ‘the reasonable man is neither all-seeing, nor all-knowing, … on
occasions he makes reasonable mistakes’ Horsey & Rackley, Tort Law
Has the defendant come up to
the standard?
A number • Foreseeability of risk (State of
of factors knowledge)
• The magnitude of the risk
influence • Extent of the possible harm
• Social usefulness of the activity that led
the to the harm
• Practical precautions taken to minimise
court’s the risk
• Common practice in relation to the risk
decision
1. Foreseeability of risk
Risk of harm has to be within the defendant’s reasonable
contemplation.
Roe v Minister of Health (1954)
Facts:
Two claimants had been given an anaesthetic for minor
operations. The anaesthetic had been contaminated with a
sterilising fluid.
This resulted in both claimants becoming permanently paralysed.
The anaesthetic had become contaminated during storage as it
was stored in glass ampoules which were emerged in the
sterilising fluid.
It transpired that the ampoules had minute cracks which were not
detectable with human eye.
Held:
At the time it was not known that the
anaesthetic could be contaminated in this
way and the hospital followed a normal
procedure in storing them this way.
There was no breach of duty. The risk was not
foreseeable as it was an unknown risk at the
time.

We must not look at the 1947 incident with

1954 spectacles’ – Lord Denning

After this case it only started to be known as a breach of duty

2. Magnitude of the risk

Measuring the magnitude of risk involves

measuring the how risky the defendant’s
behaviour was (greater risk of harm) and the
extent of harm which could ensue should the
risk materialise (risk of greater harm).
Bolton v Stone
Facts:
Miss Stone was injured when she was struck by a
cricket ball outside her home. She brought an action
against the cricket club in nuisance and negligence.
The cricket field was surrounded by a 7 foot fence.
The pitch was sunk ten feet below ground so the
fence was 17 feet above the cricket pitch. The
distance from the striker to the fence was about 78
yards and just under 100 yards from where the
claimant was standing.
A witness who lived in the same road as the claimant
but close to pitch said that five or six times during the
last 30 years he had known balls hit his house or
come into the yard. Two members of the Club, of
over 30 years' standing, agreed that the hit was
altogether exceptional to anything previously seen on
that ground.
Held:

No breach of duty. The likelihood of harm

was low the defendant had taken all practical
precautions in the circumstances. The cricket
ground had been there for 30 years without
injury and provided a useful service for the
community.
Paris v Stepney BC (1951)

Facts:

The claimant only had sight in one eye due to in

injury sustained in the war. His job included welding,
while doing this one day, a splinter of metal went into
his sighted eye causing him to become completely
blind.
The employer did not provide safety goggles to
workers engaged in the type of work the claimant
was undertaking.
The defendant argued there was no breach of duty as
they did not provide goggles to workers with vision in
both eyes and it was not standard practice to do so.
There was therefore no obligation to provide the
claimant with goggles.
Held:
There was a breach of duty.
The employer should have provided goggles to
the claimant because the seriousness of harm
to him would have been greater than that
experienced by workers with sight in both eyes.
The duty is owed to the particular claimant not
to a class of persons of reasonable workers.
Where a claimant has some characteristic
which increases the risk of harm, the defendant
may have a duty to take extra precautions to
protect them
3. Practical precautions taken to minimise the risk
A foreseeable risk warrants precautions, hence the
reasonable man is under an obligation to take reasonable
precautions to minimize the risk involved in his behaviour.
Latimer v AEC Ltd (1953)
Facts:
The claimant worked in the defendant's factory and slipped
up on the factory floor.
The factory had become flooded due to adverse weather
conditions.
The defendant's had put up warning signs mopped up and
placed sawdust in the most used places to make it as safe as
possible.
The trial judge held that there had been a breach of duty as
the defendants should have closed the factory if it was
unsafe.
However, no argument had been advanced on this.
Held:
There was no breach of duty.
There was no duty to close the factory.
The defendant only had to take reasonable
precautions to minimise the risk which they
had done.
There was no need to go to great expense to
eliminate any possible risk and thus no
obligation to close the factory.
4. Social usefulness (utility of the activity)
• Defendant may be found not liable if it is possible to show
that taking the risk was justified; for example to avoid a
potentially worse situation or to save someone.

Watt v Herfordshire County Council

Facts:
• The claimant was a fireman. A woman had been involved in
a traffic accident and was trapped underneath a lorry.
• This was 200-300 yards away from the fire station. The fire
services were called to release the woman. They needed to
transport a heavy lorry jack to the scene of the accident.
• The jack could not go on the fire engine and the normal
vehicle for carrying the jack was not available.
• The fire chief ordered the claimant and other firemen to lift
the jack on to the back of a truck. There was no means for
securing the jack on the truck and the firemen were
instructed to hold it on the short journey.
• In the event the truck braked and the jack fell onto the
claimant's leg causing severe injuries.
Held:

There was no breach of duty.

The emergency of the situation and utility of
the defendant's conduct in saving a life
outweighed the need to take precautions.

Plus he's a fireman, it's his duty to save lives they have a contract
5. Common practice in relation to the risk
A negligent activity cannot be excused merely
because it is common practice, however the
fact that something is common practice may
be strong evidence that it is not negligent.
Common practice adds to the notion if it was
negligent it would not normally be carried
out.
 1. Children
McHale v Watson: ‘the standard by which his
conduct is to be measured is not that to be
expected of a reasonable adult but that
reasonably to be expected of a child of the
Special same age, intelligence and experience’
categories who Are to be judged by the standards of a reasonable
are treated child of the same age – Mullin v Richards
differently 2. Motorists
Nettleship v Weston: No distinction between
experienced drivers and learner drivers. Both
are judged according to a test of general
reasonableness.
3. People involved in sporting activities.
Generally, standard of care is the ordinary standard of
reasonable care but the status of the player, whether
professional or amateur, will be taken into account.

Condon v Basi: ‘much higher degree of care would be

required of a professional football player’
Hence an amateur is to be judged by the standards expected
of amateur and a professional by the standards expected of a
professional.
Professionals
– Medical
context
Professionals

◦ Are to be judged by the professional standard.

◦ The term ‘professional’ has a specified meaning which is narrower than the
layman usage of the word.

◦ Who are professionals to which this standard applies?

◦ Persons who:
◦ Are members of a profession
◦ Earns a living from a specified professional activity
◦ Has a certain standard of education and training
◦ Has particular knowledge or skill necessary for a specific role
◦ Complies by a strict code of conduct
◦ Is bound by ethical and moral obligations
 Professionals do not have to conform to the usual
rules on breach of duty in negligence.
Their actions are not judged alongside the reasonable
man. They have to comply with the test set down in
the case of :Bolam v Friern Hospital Management
Committee.
Facts:
The claimant was undergoing electro convulsive
The therapy as treatment for his mental illness. The
Professional doctor did not give any relaxant drugs and the
claimant suffered a serious fracture.
Standard There was divided opinion amongst professionals as
to whether relaxant drugs should be given. If they are
given there is a very small risk of death, if they are
not given there is a small risk of fractures.
The claimant argued that the doctor was in breach of
duty by not using the relaxant drug.
Held: The doctor was not in breach of duty.
The House of Lords formulated the Bolam
test:

"a medical professional 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 . . . Putting it the other way
round, a man is not negligent, if he is acting in
accordance with such a practice, merely
because there is a body of opinion who would
take a contrary view."

Hence a professional man is also judged by

his peers

They have to find a doctor who will support their decision of act
 Under standard Bolam principles, a doctor must
exercise the skill and care of a reasonably
competent member of the profession.
While there are old decisions that take into
account the individual experience of a doctor in
setting the standard of care, the more modern
view is to judge the doctor by the standard of
skill and care appropriate to the role they were
The medical filling – Wilsher v Essex AHA
profession If a doctor does not have the requisite degree
of skill for the role in which they are acting, the
hospital authorities will be liable for putting the
doctor in a position that was too advanced for
their abilities.
In Wilsher, the claimant was a child taken to
hospital and examined by a junior doctor, key
symptoms were missed. The doctor was found
to be in breach of duty
 Ø Bolam was a case involving negligent treatment
and since the enunciation of the test, it has
Application of been applied to cases involving negligent
treatment, diagnosis and disclosure
the Bolam
test Ø However, over the years, the test has lost some
of its influence notably in cases involving a
doctor’s duty of disclosure.
Bolitho v City & Hackney Health Authority (1998)

In this case, the House of Lords explained that only

when a body of medical opinion cannot be logically
supported will its opinion be disregarded
A doctor does not escape liability by merely forwarding
evidence by a number of experts who claim to
represent a reasonable, respectable and responsible
school of thought
A reasonable respectable, responsible school of
thought is one whose views are capable of logical
analysis.

While looking for a fellow doctor,
who is here to support your point,
the support must be logical and
be proven with statistics
‘The court has to be satisfied that the exponents of
the body of opinion relied upon can demonstrate
that such opinion has a logical basis. In particular,
in cases involving, as they so often do, the
weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible,
reasonable or respectable, will need to be satisfied
that, in forming their views, the experts have
directed their minds to the question of
comparative risks and benefits and have reached a
defensible conclusion on the matter.’ – Lord
Browne-Wilkinson
Bolitho was significant as it was an explicit
assertion of the highest court of the land that the
Bolam test was not end all test - that the courts
reserved their right to look beyond it by actively
assessing and the calibre and merit of the basis on
which the standard is proclaimed.
The Bolam test is used in relation to the
following issues:

Consent to
Examination of the
treatment; for
patient and
example an
diagnosis
operation

Choice of
The doctor’s level
treatment given to
of expertise.
the patient
Consent
When deciding if the defendant has
been negligent in providing
information for the claimant to
provide real consent to treatment,
the court has to consider how
much information a doctor must
give to the patient.
Sidaway v Governors of the Bethlem Hospital and
Maudsley Hospital.
Facts:
Claimant was advised to have an operation on her
back, but was not warned that there was a small risk
it could lead to paralysis.
The claimant did become paralysed and she claimed
that the surgeon had been negligent in not warning
her of the risk, even though there was no negligence
in the way the operation itself was performed.
Held:
Surgeon was not liable, largely on the basis of the
Bolam test; there was evidence that a responsible
body of medical opinion would not have considered it
correct to give such a warning.
Chester v Afshar
Facts:
The claimant had suffered back pain for 6 years. This became
quite severe and at times she was unable to walk or control
her bladder.
An MRI scan revealed that there was disc protrusion into her
spinal column and she was advised to have surgery. The
surgery carried a 1-2% risk that even if it was performed
without negligence the operation could worsen rather than
improve her condition.
Her consultant neurosurgeon Mr Afshar was under a duty to
warn her of this risk although he failed to do so.
The claimant had the operation and unfortunately it worsened
her condition.
The claimant argued that if she had been warned she would
not have taken the decision to have the operation straight
away but would have taken time to consider other options
and discuss the risks with her family and would thus not have
had the surgery on the day which she did have it. She did not
say she would never have had the operation.

Patient did not say she
wont take the surgery but
will discuss with family
first hence there are still
possibility that she will take
the surgery
Held:
There is a need to respect the patient’s right
of autonomy in medical decision making.
A patient has a right to be informed by a
surgeon of a small but well-established risk of
serious injury as a result of surgery
So, if the risk is well established and capable
of causing serious injury, the patient must be
informed of it.
Prima facie a patient has the right to be
informed of a well-established risk of serious
harm regardless of how small it is
Montgomery v Larnakshire Health Board

A patient has a right to decide what risks to her

health she is willing to take
A doctor therefore owes a duty to make sure his
patient is aware of all material risk inherent in
proposed treatment and of any reasonable
alternative or variant treatment
Informing patients of risk and discussing with them
their options is an attitude not something obtained
through professional training or experience therefore
to apply the Bolam test is inappropriate
What is material risk? – any risk which a reasonable
person in the patient's position would likely attach
significant to or were to likely attach significance to
or where the doctor is aware that the patient would
likely attached significance to it.
Whether a risk is material cannot be reduced
to percentages, instead a variety of factors
are to be taken into account:
nature of the risk;
effect on the life of the patient;
the importance to the patient of the
benefits of the treatment;
any possible alternatives; and
the risk of those alternatives
Examination of the
patient and diagnosis
• The Bolam test extends to the
negligent examination of a
patient and careless diagnosis.
Maynard v West Midlands Regional Health Authority (1985)
Facts:

The patient presented with symptoms of tuberculosis but both the

consultant physician and the consultant surgeon took the view
that Hodgkin's disease, carcinoma, and sarcoidosis were also
possibilities, the first of which if present would have required
remedial steps to be taken in its early stages.
Instead of waiting for the results of the sputum tests, the consultants
carried out a mediastinoscopy to get a biopsy. The inherent risk of
damage was to the left laryngeal recurrent nerve, even if the
operation was properly done. In the event, only tuberculosis was
confirmed.
Unfortunately, the risk became a reality and the patient suffered a
paralysis of the left vocal cord.
Held: The decision of the physician and the surgeon to proceed was
said by their expert peers to be reasonable in all the circumstances.
Choice of treatment
The courts believe in a clinical decision as it
is often made in emergency situations
Whitehouse v Jordan (1981)
Facts
The defendant, a senior medical professional,
used forceps to assist with the difficult
delivery of a new born child. Because of the
use of forceps, the child suffered severe brain
damage.
Held:
While it was an incorrect decision to use
forceps, the child’s claim failed as the decision
would have been the same in the case of the
reasonable professional in such circumstances
– error in clinical judgement.
Level of expertise of the doctor
It has been suggested that junior doctors should have a
lower standard of care than those who are qualified. It is
clear from case law that the judiciary do not agree with
this proposition.
The standard of care that is applied to junior doctors is
the standard that is appropriate to a doctor exercising
and professing to have the skill in question.
Wilsher v Essex AHA (1988)
Facts:
A premature baby was given too much oxygen by a
junior doctor.
The baby suffered from a condition affecting his
retina which left him totally blind in one eye and
partially sighted in the other.
The condition could have been caused by the excess
oxygen he had been exposed to or it could have been
caused by four other factors unrelated to the oxygen,
but related to the premature birth.

Held:
‘the law requires the trainee or learner to be judged by
the same standard as his more experienced colleagues.
If it did not, inexperience would frequently be urged as
a defence to an action or professional negligence’
 All professionals are measured
against the standard held by a
Bolam principle – reasonably competent body of
other professionals opinion experts with the particular
skill in question. It has been applied
to others such as auctioneers and a
local authority.
Breach must have
caused damage
If no damage is caused, there is no claim in
negligence, even if there is a duty of care and
that duty has been breached.
THE END