Chapter Breach of Duty

Revision Aid

1. Definition

This is the second element of negligence. There are two elements to consider here: the
standard of care expected and whether the defendant’s conduct fell below that standard.

2. Standard of Care and the Objective Test

What is the standard of care is a question of fact.

Whether the standard has been breached is a question of fact.

The defendant is judged against what the reasonable man would do.

Blyth v Proprietors of the Birmingham Waterworks: breach of duty was defined as either doing
something a reasonable man wouldn’t do or omitting to do something a reasonable man would
do.

Who is the reasonable man?

Hall v Brooklands Auto Racing Club: the reasonable man was described as the man on the
street, or the man on the Clapham omni bus.

Glasgow Corporation v Muir: it was held that the reasonable man is presumed to be free from
both over confidence and apprehension.

Sometimes the defendant is judged against the standard of a reasonable man despite not
having any experience.

Nettleship v Weston: Lord Denning decided that a learner driver should be judged against the
standard of care of a skilled, experienced driver. This is so the claimant is not left without
compensation and that it would not be appropriate for a driver to owe different duties to
different claimants.

Judges should not set the standard too high as it could lead to unlimited liability.

Cole v Davis-Gilbert: defendants were not and should not have been aware of a hole in the
village green where the claimant fell and broke his leg. The defendant was not held liable.

Harris v Perry: the defendant was not held liable as the Court of Appeal recognized that the
standard of care was appropriate to protect children against a foreseeable risk of physical injury
but this did not mean the children had to be constantly supervised.
3. How is the Standard of Care decided?

When deciding the standard of care the court takes into account a number of factors.

(a) Foreseeability of the risk:

The risk of harm has to be within the defendant’s reasonable contemplation.

Roe v Minister of Health: at the time of the incident the risk of anesthesia being contaminated
by the sterilizing liquid it was stored in was unheard of and there was no liability.

Walker v Northumberland County Council: claim was successful because it was foreseeable that
continuation of the stress would damage the claimant’s mental health.

(b) Magnitude of the risk:

The size of the risk has to be balanced against the action that must be taken to guard against it.

Haley v London Electricity Board: the claimant was successful as it was foreseeable that a blind
person may walk by and be at risk of harm and that risk was not addressed.

(c) Extent of the possible harm:

The defendant must take the victim as he finds him (egg shell skull rule).

Paris v Stepney Borough Council: the defendant was liable as the employee was already blind in
one eye and the greater risk to the employee’s good eye meant that greater precautions had to
be taken.

(d) Social usefulness of the activity:

The defendant may not be found liable if he can show that taking the risk was justified.

Watt v Hertfordshire County Council: equipment was being transported on another vehicle to
help a woman trapped under a car. The defendant was not liable for the claimant’s injury as the
need to save the woman outweighed the risk taken with the equipment.

Griffin v Merseyside Regional Ambulance: the claimant won his claim but was held to be 60%
contributorily negligent as he should have moved his car out of the way of the ambulance.

Scout Association v Barnes: the risk associated with activities in the dark were not outweighed
by their social utility and so there was liability.
 (e) Practical precautions taken to minimize risk:

There has to be a limit on the precautions the defendant is expected to take.

Latimer v AEG Ltd: the defendant tried to clean the oily floor surface of his factory with sawdust
but the claimant still fell and injured himself. The defendant was not held liable as the only
other precaution was to shut the factory which was unrealistic.

(f) Common practice in relation to the risk:

If something is practiced as a precaution it becomes strong evidence of there being no

negligence.

Brown v Rolls Royce: providing a protective cream to guard against skin diseases was common
in the car industry but the defendant was not held liable as there was no evidence that even if
supplied it would have prevented the skin disease.

4. Standard of Care for different classes of defendants

The standard of care is not the same for everyone and there are categories of people that are
treated differently.

(a) Children:

Standard of care depends on the age and experience of the child.

McHale v Watson: a 12 year old boy was not held liable as he did not know that a dart would
bounce off a lamp post.

Mullin v Richard: the 15 year old defendant was not liable for injuring the claimant when play
fighting with plastic rulers.

Blake v Galloway: a child is not expected to have the same perception of risk that as adult
would have. There would only be breach of duty in rough play where the conduct amounts to
recklessness or a very high degree of carelessness.

Section 1 of the Compensation Act asks the court to consider whether the defendant is engaged
in desirable activity that may be affected if liability is imposed. Rough play is a desirable activity.

Zanner v Zanner: the child was not engaged in rough play and found liable for running over his
mother as he was held to the same standard as that of a reasonable driver.

(b) Medical Professionals:

The actions of medical professionals are not judged against the standard of a reasonable man.
Bolam v Friern Hospital Management Committee: the defendant must show that there is a
competent body of expert opinion that agrees with his course of treatment. This will be enough
to show there is no liability.

De Freitas v O’ Brian: 11 out of 1000 surgeons would have acted the way the defendant did and
the court said that is enough to avoid liability.

Maynard v West Midlands Regional Health Authority: it was held that there had been no
negligence as the doctor had followed the approved practice of a body of medical opinion even
though there were conflicting practices.

Shakoor v Situ: the Bolam principle was extended to Chinese herbal medicine and the
defendant was not found liable as his actions were consistent with the standard of care
appropriate to traditional Chinese herbal medicine.

The Bolam test is applied in the following 4 things that doctors do:

(i) Acquiring consent to treatment:

The court has to consider how much information the doctor should give to the patient so that
his consent is real and/or informed.

Hatcher v Black: Lord Denning held that the doctor could tell the patient as much as they
needed to know in the circumstances and that this is a clinical decision rather than a judicial
decision. The defendant was not held liable.

Sidaway v Governors of the Bethlem Hospital and Maudsley Hospital: the defendant was not
held negligent in not telling the patient about a 1% chance that she might suffer damage to the
spine.

Chester v Afshar: here the doctor was held liable and it was held he fell below the appropriate
standard for failing to give full information to the patient.

Montgomery v Lanarkshire Health Board: this case shows that the doctor/patient relationship
has changed. The court stated that the doctor is under a duty to take reasonable care to ensure
that the patient is aware of any material risks involved. What amounts to material is whether in
the circumstances a reasonable person in the patient’s position would be likely to attach
significance to the risk or the doctor is or should reasonably be aware that the patient would
attach significance to it.

(ii) Examination and disgnosis:

Ryan v East London and City Health Authority: there was a misdiagnosis as a result of which
the doctor was held liable.

(iii) Choice of treatment given to the patient:

The courts believe that this is a clinical decision as it is often made in emergency situations.

(iv) Doctor’s level of expertise:

The standard 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 Area Health Authority: the defendant’s negligence was one of the possible
causes of damage. House of Lords held that a junior doctor must have the same degree of skill
and care as an experienced doctor.

Knight v Home Office: the claim that prison hospitals should have the same standard of care as
psychiatric hospitals failed.

The Bolam test applies to pharmacists, auctioneers and local authorities.

Horton v Evans: a pharmacist was held liable as in the circumstances a reasonably careful and
competent pharmacist would have noticed the incorrect dosage.

Luxmoore Bay v Messenger Bay and Baverstock: a general auctioneer was not held to the
same standard as a special art auctioneer.

Adams v Rhymney Vallet District Council: the council was judged against a reasonable body of
experts that were window installers and not found to be negligent.

Whitehouse v Jordan: the evidence was not strong enough to show that the doctor used the
forceps in a manner that was incorrect. Moreover the defendant’s standard of care did not fall
below the standard of a reasonable doctor in the circumstances and the claim failed.