Lecture 3 Breach of Duty - Negligence

BREACH OF DUTY  Negligen ce Duty of Causatio Damage Breach Care n s LEARNING OBJECTIVES understand that the basic standard of care in negligence is objectively assessed appreciate the situations in which a more...

BREACH OF DUTY  Negligen ce Duty of Causatio Damage Breach Care n s LEARNING OBJECTIVES understand that the basic standard of care in negligence is objectively assessed appreciate the situations in which a more subjective standard will be appropriate; Understand the factors judges consider to determine if the defendant met the standard of care.  STANDARD OF CARE Blyth v Birmingham Waterworks Co (1856), Alderson : 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 general standard of care in negligence is objective - the reasonable man.  STANDARD OF CARE Glasgow Corp v Muir (1943) Lord Macmillan described the reasonable man in this way: – The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset by lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence.  OBJECTIVITY OF THE STANDARD OF CARE The defendant will be judged according to the best efforts of the hypothetical “reasonable person”. NOTE: Whilst the law will adapt the standard of care to take account of external circumstances, it will not, generally speaking, take account of the defendant’s personal characteristics. Nettleship v Weston 2 Q.B. 66; Roberts v Ramsbottom 1 WLR 823 C/F Mansfield v Weetabix Ltd 1 WLR 1263 Dunnage v Randall EWCA Civ 673  EXCEPTIONS TO THE OBJECTIVE STANDARD - CHILDREN McHale v Watson (1966) - the standard to be applied to a child is that of the capacity, in terms of foresight and prudence, which is ‘normal for a child of the relevant age’. Mullin v Richards (1998) - CA - there was no breach of duty, due to the fact that the girls would not have foreseen any real likelihood of injury: ‘girls of 15 playing together may play as somewhat irresponsible girls of 15’. ILLNESS NOTE: depend on the extent of D’s awareness of the illness and the control which D has over their actions Roberts v Ramsbottom 1 WLR 823 C/F Mansfield v Weetabix Ltd 1 WLR 1263 Dunnage v Randall EWCA Civ 673  KNOWLEDGE & SKILL NOTE: the defendant’s actions will be judged on the standard prevalent in the circumstances of the time. Roe v Ministry of Health (1954) – – Denning LJ observed, ‘We must not look at the 1947 accident with 1954 spectacles.’ – Japp v Virgin Holidays (2013), CA - held that the relevant safety standards of hotel glass doors were those at the time of the installation rather than that of the accident. NOTE: The law in these situations imposes the standard of care of the reasonable practitioner of the skill which the defendant  MEDICAL NEGLIGENCE BREACH OF DUTY C must prove that the defendant fell below the relevant standard of care. WHOSE STANDARD? NOTE: The duty is the same regardless of the doctor’s experience. inexperience is not a defence to a medical negligence action - Wilsher v Essex AHA QB 730 (CA). The standard of care expected of a doctor was laid down in Bolam v Friern Hospital Management Committee.  BREACH OF DUTY Bolam v Friern Hospital Management Committee. A doctor had been negligent in administering electro- convulsive therapy to a patient without a relaxant drug or restraining convulsive movements. The claimant suffered a fractured jaw. HELD: On the facts, the defendant was found not liable, as he had conformed with a practice which was approved by a responsible body of medical opinion. MCNAIR J But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that MCNAIR J Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. NOTE: A doctor 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 doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.  WHAT STANDARD? NOTE: The duty of care is imposed by law, but the standard is a matter of medical practice – Lord Scarman in Sidaway v Bethlem Royal Hospital Governors Where there is only one accepted practice, then following this practice will not amount to negligence. In exceptional cases the courts may take the view that established practice is unsatisfactory and find negligence - Hucks v Cole (1968) 112 Sol Jo 483. NOTE: Where there is more than one accepted practice, then following a practice approved by a responsible body of medical opinion will exonerate the doctor –see Maynard v West Midlands RHA 1 WLR 634.  WHAT STANDARD? Bolitho v City and Hackney Health Authority The court was not obliged to hold that a doctor was not liable for negligent treatment or diagnosis simply because evidence had been called from medical experts who genuinely believed that the doctor's actions conformed with accepted medical practice. The reference in Bolam to a "responsible body of medical men" meant that the court had to satisfy itself that the medical experts could point to a logical basis for the opinion they were supporting.  STANDARD OF CARE BY MEDICAL PROFESSIONALS Has the defendant acted in accordance with a medical practice accepted as correct by a respectable body of medical opinion? (Bolam.) Was this practice logical and reasonable? (Bolitho.) The courts will not choose between two contrary bodies of respectable medical opinion. Thus, Bolitho imposes a ‘gloss’ on the Bolam test, by enabling the Court to conclude, in an appropriate case, that the doctor was negligent even though he acted consistently with a number of his peers. This leaves the ultimate question of breach to be determined by the judge as a matter of law, and not to the medical community as a matter of accepted practice.  STANDARD OF CARE BY MEDICAL PROFESSIONALS NOTE: Bolam and Bolitho are cases which concern medical treatment, but their approach has also been applied to diagnosis. Ryan v East London and City HA (2001). Here the hospital trust was liable in negligence to a boy who suffered extensive surgery unnecessarily when a benign tumour was mistakenly diagnosed as malignant. NOTE: the junior doctor must exercise the same degree of skill as the experienced doctor - Wilsher v Essex Area Health Authority 1 AER 871 NOTE: An inexperienced doctor will discharge his duty of care by seeking the assistance of his superiors to check his work, even though he may himself have made a mistake. If a senior, experienced doctor makes a mistake in checking the  LEARNED HAND FORMULA ​ United States v. Carroll Towing Co 159 F.2d 169 (1947)​ If (Burden of taking precautions < Cost of Injury × Probability of occurrence): accused will not have met the standard of care required. ​ If (Burden of taking precautions ≥ Cost of injury × Probability of occurrence): accused may have met the standard of care. ​  Other factors considered Burden of Utility of the Foreseeability taking defendant’s Magnitude of of harm the risk precautions conduct  FORESEEABILITY OF HARM If the particular harm the claimant suffers is not foreseeable, the defendant will not be liable. This is because, rather obviously, the “reasonable person” cannot be expected to take any precautions against unforeseeable risks. Roe v Ministry of Health NOTE: The law insists that a risk must be reasonably foreseeable before making a defendant liable. THE MAGNITUDE OF THE RISK 2 factors Seriousness Likelihood of the that harm consequenc will occur es THE LIKELIHOOD OF HARM Bolton v Stone A.C. 850 - the chance of an injury occurring to someone who was standing in the position of the plaintiff was so slight that the defendants were not negligent in continuing to play cricket without taking additional precautions. c/f Hilder v Associated Portland Cement Manufacturers Ltd 1 W.L.R. 1434 NOTE: the reasonable person must tailor his conduct in the light of the characteristics of the people whom he knows it might affect -Haley v London Electricity Board A.C. THE SERIOUSNESS OF THE CONSEQUENCES NOTE: The more serious the consequences, the greater the obligations of the defendant. Paris v Stepney BC A.C. 367 - defendants were liable for failing to provide this particular worker with goggles, knowing that he might suffer such serious consequences if the small risk materialised. THE BURDEN OF TAKING PRECAUTIONS NOTE: If the burden of taking steps to eliminate a risk outweighs the benefit, then failure to take those steps will not generally amount to negligence. Latimer v AEC Ltd A.C. 643 – HOL - defendants had not been negligent. They had done all that reasonable employers could be expected to do for the safety of their workers. The only way the defendants could have eliminated the risk entirely would have been to close the factory, and this would have been a precaution out of all proportion to the risk in question. THE UTILITY OF THE DEFENDANT ’ S CONDUCT NOTE: The greater the social utility of the defendant’s conduct, the less likely it is that the defendant will be held to be negligent. Watt v Hertfordshire CC 1 W.L.R. 835 - It was held that the defendant employers were not negligent because the need to act speedily in an attempt to save the woman’s life outweighed the risk to the plaintiff. Daborn v Bath Tramways Motor Co Ltd NOTE: The court will have regard to all the circumstances of the particular case. Ward v London CC 2 All E.R. 341 the driver of a fire engine was held to have been negligent in driving through a red traffic light. DEFENDANTS ACTING IN AN EMERGENCY In cases where the defendant is forced to act quickly 'in the heat of the moment,' the standard of care is relaxed to consider the exigencies of the situation. Jones v Boyce (1816) 171 E.R. 540 - the man was not guilty of negligence just because he had selected the more perilous of two alternatives with which he was confronted in an emergency Ng Chun Pui v Lee Chuen Tat R.T.R. 298 Marshall v Osmond Q.B. 1034. c/f Rigby v Chief Constable of Northamptonshire 1 W.L.R. 1242.  THE COMPENSATION ACT 2006 AND SOCIAL ACTION, RESPONSIBILITY AND HEROISM ACT 2015 S.1 Compensation Act 2006 SARAH’s Act 2005 whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (s.2); whether the person, in carrying out the activity giving rise to the claim, demonstrated a “predominantly responsible approach” towards protecting the safety or other interests of others (s.3); whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger (s.4).