Law of Tort: Breach of Duty

th11WIU28YBreach of Duty: The Reasonable Person

Relationship to Negligence

The first step in any Negligence based claim in tort is to establish a duty of care. This issue is tackled in another blog post. This post concentrates on laying the legal groundwork for a claim. After a duty is owed, it must be breached in order for a negligence claim to come to fruition. There are several exceptions to the general reasonable person standard.

The Standard of the Reasonable Person

The standard of the reasonable person is an objective test, which looks at the defendant’s actions and conduct from an outside perspective. This standard creates a fictitious person that the courts can use to create a uniform standard for everybody.

Baron Alderson set out the standard of the reasonable person below:

Blythe v Birmingham Waterworks [1856] 11 Exch 781Negligence is the omission to do something which the reasonable man would do or doing something which the prudent and reasonable man would not do’

Factors to set the Reasonable Standard

To determine whether there has been a breach of duty, the courts will look at a number of factors:

  • Likelihood of Injury
  • Seriousness of Injury
  • Cost of Avoiding Injury
  • Social Value of the Defendants actions

These factors must be considered individually and collectively

Likelihood of Injury

The more likely it is that an injury will occur the higher the standard expected of the defendant. In other words this means that if it is more likely that an injury will occur, there will be a higher standard that the defendant will have to reach, which will likely include taking precautions.

Bolton v Stone [1951] AC 850 – It was reasonably foreseeable that somebody could be hit by a cricket ball leaving the grounds. However, the court held that the likelihood of injury was exceptionally small, which meant that the defendant in this case was not liable. In other words, the reasonable man wouldn’t have done anything.

In practise this essentially means that if there is a low risk, then there may be no need to take any preventative actions. However, if the risk is much higher the defendant would likely be required to take some precautionary measures, against the foreseeable harm. This would be to minimise the likelihood of injury.

Seriousness of Injury

If there is a risk that the injury caused could be serious a higher standard of care will be required of the defendant. In other words this means that if the risk is more serious, the defendant will have to do more to ensure safety and reduce the associated risks.

Paris v Stepney Borough Council [1951] AC 367 – The claimant had a disability, which the employer was aware of – The claimant was blind in one eye. A splinter of metal flew into the claimants good eye, which left him blind. Goggles were not provided, which is the usual requirement. The House of Lords said that despite the risk of harm being relatively low, the claimants disability increased the risk of serious injury. The defendants were liable in this case

Cost of Avoiding the Injury

The cost of any preventative and precautionary measure must be balanced against the risk of harm. This means that if there is a low risk of harm, it is not practical to take exhaustive and expensive measures to minimise the risk further.

Latimer v AEC [1953] AC 643 – The defendants factory was flooded, which led to water being mixed with oil and making the floor incredibly slippery. The factory put sawdust onto most of the affected areas. However, the claimant slipped on an uncoated part, which led to him becoming injured.

The claimants argument was that the factory was negligent because they failed to close the factory. The House of Lords held that a balancing act was necessary in order to determine whether the cost is justified and necessary to minimise the risk. In this case the defendant was not negligent because it was not necessary to close the factory. One person was hurt, but the factory employed over 400 people

Social Value of the Defendants Actions

If the defendants act is a benefit to society, the courts will balance this against the risk of harm that they’re taking.

Watt v Herts County Council [1954] 1 WLR 835 – A woman was trapped beneath a car, which required a specialist jack to free the woman. The Fire Brigade used an unsuitable lorry to transport the jack, which led to the claimant becoming inured. The defendants were found to be negligent, but the defendants were trying to save a life and were acting as part of their duty as emergency responders.

Exceptions to the General Rule

The following are exceptions to the general reasonable person standard:

  • Skills
  • Emergencies
  • Children
  • Illness

Exceptions: Skills

When a person has a specific skill set, they will not be judged to the standard of the reasonable person without those skills. This can include professionals such as lawyers, doctors, nurses and tradespeople. The standard used for skilled individuals is the Bolam test.

Bolam v Frien Hospital Management Committee [1957] 2 All ER 118 – Bolam suffered from depression and agreed to Electro convulsive therapy. There were conflicting views of whether to sedate, restrain or do nothing during this treatment, but the doctor decided to do neither. This led to Bolam falling off the bed during the procedure, and was injured. The court held that the defendant doctor had acted in accordance with medical opinion, which meant that the doctor was not negligent. In practise this test can be applied to a wide range of skilled jobs and activities.

The House of Lords have restricted the use of the Bolam test in medical cases. In a case where medical opinion is relied upon, the courts have to be satisfied that the doctors considered the risks and benefits of the treatment, and that their conclusion is defensible. (Bolitho v City and Hackney Health Authority [1997] 4 All ER 771)

Nettleship v Weston [1971] 3 All ER 581 – A learner driver was judged to the standard of the competent driver, and not a learner driver. If someone carries out a skilled task, and they lack the skills to reach the required standard of care, then they will be in breach of duty.

Exceptions: Children

Children will not be judged to the standard of the reasonable person because they lack the knowledge and experience of adults. The standard that children are judged by is that of the reasonable child of that child’s age. This is very important because children will have very different understandings and knowledge, so it would not be in anyone’s interest to judge them to the standard of an adult.

Mullins v Richards [1998] 1 All ER 920 – Two school girls had a ruler fight with plastic rulers. One of the rulers shattered and a shard went into the claimants eye, which blinded her. The High Court ruled that the defendant was negligent and the claimant had her damages reduced by 50%. However, the Court of Appeal correctly stated that the test for children was whether a reasonable child of the same age would foresee the risk of harm. There was no evidence that rulers shattered easily nor were they banned, therefore, the Court of Appeal ruled that the defendant was not negligent.

Orchard v Lee [2009] EWCA Civ 295 – A child was playing tag in the playground, and ran into a teacher causing her injuries. The court held that the child was not negligent, and for the child to be negligent they had to act with a very high degree of carelessness.

Exceptions: Illness

If the claimant has an illness or a disability, and the defendant knows this or ought to have foresee it, the defendant will owe a greater duty of care.

Haley v London Electricity Board [1964] 3 All ER 185 – A Blind man fell into a trench dug in London. A pickaxe handle had been placed at the edge, which would’ve been sufficiently for someone with ordinary sight. The House of Lords held that because London was home to a large proportion of Blind people the defendants should have foreseen the higher risk to them, which made the defendants negligent.

When determining whether there has been a breach of duty, the courts will consider the defendant having an illness that they are unaware of having.

Roberts v Ramsbottom [1980] 1 All ER 7 – A 73 year old man collided with the claimants vehicle, which caused her injuries. The defendant argued that he had a stroke 20 minutes prior to the collision, but because he was unaware he was not negligent. Prior to this collision the defendant had two minor collisions, and admitted he felt strange. The court held that because he was negligent because he continued to drive, even when he should have realised he was ill.

COMPARE AND CONTRAST

Mansfield v Weetabix [1998] 1 WLR 1263 – The Defendant’s lorry driver suffered with a condition that caused a hyperglycaemic state, which caused his to lose consciousness. The defendant was unaware he suffered from this condition or that it affected his driving. He then crashed into the claimants shop, but the courts held that he was not negligent

Dunnage v Randall [2015] EWCA Civ 673 – The defendant suffered from a mental disorder and he set himself on fire. The claimant is the defendant’s nephew he tried to put the fire out and suffered serious burns himself. The defendant died from the burns, so the claimant sued the defendant’s estate in negligence. The Court of Appeal held that the defendant had to meet the objective test. The defendant still had physical control of his actions, so he owed a duty of care to the claimant, which was breached.

Dunnage ignores the defendants condition and contradicts Mansfield v Weetabix

Emergencies

If the defendant is acting in an emergency this is taken into account when deciding the standard they have to meet. The standard is generally lower when responding to an emergency. For example, giving first aid at a road traffic accident, the fact that it is in an emergency will be considered by the courts.

Marshall v Osmond [1983] 2 All ER 225 – A police car was chasing suspects. The cars skidded on gravel and the police car crashed into the claimants, which caused them injury. The court held that the police do owe a duty of care to someone that they are chasing.

Res ipsa Loquitur

This phrase essentially translates to “The thing speaks for itself”. This rule is one that can be used when it s clear that the defendant has acted negligently. There are three requirements that must be met for this rule to be used:

  • The Injury would not happen without negligence – The simplest example of this is surgeons leaving surgical implements inside of patients after surgery (Mahon v Osborne [1939] 2 KB 14) or the wrong limb being amputated.
  • There is no explanation for the injury – If there is an explanation for the injury then Res Ipsa will not apply (Barkway v South Wales Transport [1950] 1 All ER 392)
  • The defendant has control of the thing causing injury – If the defendant has control then Res ipsa can apply. For Example if a train leaves the station and a child falls out the door (Gee v Metropolitan Railway Co) then Res ipsa can be used. If it s several miles out the station the defendant has not had control as other passengers may have interfered, so Res ipsa couldn’t be used (London v North Eastern Railway Co [1944])

The Rule comes from the case of Scott v London and St Katherine Docks Co. (1865) 3 H&C 596 – In this case the claimant walked into the defendants warehouse, where six bags of sugar being lowered fell onto him. The court said bags of sugar do not usually fall onto people if care is taken

All Three of these criteria must be met, if they are not then the claim for negligence will have to follow the usual pathway of Negligence.

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