breach of duty
DESCRIPTION
TortTRANSCRIPT
Negligence: Overview
1. Duty of care
2. Breach of duty
3. Causation in fact
4. Causation in law
5. Defences
19.04.23 2
Overview: Breach of Duty
The Reasonable Person Test
Skilled Defendants
Defendant’s Personal Characteristics
Factors Relevant to the Standard of Care
Proof of Negligence
The Reasonable Person Test
‘What would the reasonable person have done in the defendant’s circumstances?’
What behaviour was reasonable in the situation at hand?
McFarlane v Tayside Health Board [1999] UKHL
50 'commuters on the London
Underground’ Lord Steyn
Mr. McFarlane vasectomy Oct 1989; Letter March 1990 told sperm counts negative.
Sept 1991 Mrs. McFarlane pregnant & 5th child born 1992.
Claim: Mrs. McFarlane suffered pain & distress from pregnancy & birth (£10,000); costs rearing child (£100,000).
Costs of pregnancy ALLOWED; costs of raising healthy child (NOT ALLOWED)
Blyth v Birmingham Waterworks Co [1856] 11 EX
781 Birmingham Water Works
Company (D) installed fireplug into the hydrant near house of Mr Blyth (C).
That winter, there was a severe frost Plug failed causing flood & damage to Mr Blyth's house.
Mr Blyth sued Birmingham Waterworks for negligence.
Failed: frost not in contemplation (Bramwell dissenting)
The Reasonable Person Test
Baron 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.’
Blyth v Birmingham Waterworks Co [1856] 11 EX 781:
Glasgow Corporation v Muir [1943] 2 AC 448
Sunday School children were to be having a picnic, but it rained.
Outing leader asked tearoom manager for children to picnic there.
Large tea urn carried along corridor by two adults to main tearoom.
Tea urn overturned & scalded girl.
Parents sued Glasgow Corporation, claiming they owed child duty of care & they had breached this.
Manageress owed DofC, generally, BUT, did not owe additional duty of care to Sunday School.
Objective testGlasgow Corporation v Muir [1943] 2 AC 448
‘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 image every path beset by lions; others, if more robust temperament, fail to foresee or nonchalantly disregard even the most obvious danger. The reasonable man is presumed to be free both from over-apprehension and from over-confidence.’
Lord Macmillan
A Subjective Element
‘What would the reasonable person have done in the defendant’s circumstances?’
This brings into play issues such as whether the defendant was acting in an emergency (external circumstances) but the courts will not generally take into account the defendants personal characteristics.
The General Standard of Skilled Defendants
‘The Bolam Test’
The test is the standard of the ordinary skilled man exercising and professing to have that particular skill. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582 Mr Bolam (C) voluntary
patient at mental health institution run by Friern Hospital Management Committee (D)
He agreed to undergo electro-convulsive therapy.
Not given muscle relaxant or restrained.
Suffered serious injuries.
Sued hospital for (1) not giving relaxants (2) not restraining (3) not warning of risks.
D not negligent.
The General Standard of Skilled Defendants: ‘The Bolam
Test’
‘It is not necessary for you to decide which of two practices is better practice, as long as you accept that what the defendant did was in accordance with practice accepted by reasonable persons.’
McNair J. in
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
‘The Bolam Test’Sidaway v Bethlem Royal Hospital Governors [1985] AC 871 (consent for operation; neurosurgeon did not mention 1% risk of paraplegia: risk materialised)The test is: whether Dr fell below standard of reasonable Dr. S/he has not breached this standard if a reputable body of Drs would have done/omitted to do the same thing. (NB this does not even have to be the majority.)
Newell v Goldenberg [1995] 6 Med LR
Bolitho City and Hackney HA [1998] AC 232
A boy suffered brain damage after doctor failed to attend.
The HL found for D, but on the basis that they were entitled to choose between two bodies of opinion and to reject the ‘illogical’ ( Lord Browne-Wilkinson in Bolitho at 243)
In other words the courts must believe that the experts have ‘reached a defensible conclusion’.
‘The Bolam Test’
Chester v Afshar [2005] 1 AC 134
1-2% risk of cauda equina syndrome
Risk materialised.
Lord Steyn, Lord Hope & Lord Walker; Lord Bingham & Lord Hoffmann (dissenting)
A basic principle of good medical practice that adults should consent on a fully informed basis to surgery, aware of all risks?
Chester v Afshar [2005] 1 AC 134
‘The most plausible [account] emphasizes the integrity rather than the welfare of the choosing agent; (...) Recognizing an individual right of autonomy makes self-creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent - but, in any case, distinctive - personality. (...) We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed [emphasis added] wish, because we acknowledge his right to a life structured by his own values.’
R.Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia, 1993:
224.
Policy considerations
Sidaway is not overruled, but this is a move towards patient autonomy, with effectively a special rule being adopted:
Not to encourage practice of defensive medicine: Lord Denning in Whitehouse v Jordan [1980] 1
All E.R. 650; Lord Kilner Brown in Ashcroft v Mersey
Regional Health Authority [1983] 2 All E.R. 245
Not to encourage a culture of litigation in medical cases
Recent application of Bolam/Bolitho
Jones v North West SHA [2010] EWHC 178 (QB)(consultant obstetrician)
M's Guardian v Lanarkshire Health Board [2010] CSOH 104 (consultant and the senior registrar)
Fallon v Wilson [2010] EWHC 2978 (QB) (GP)
Dainton v Powell [2011] EWHC 219 (QB) (GP)
Fraser v Bolt Burdon [2009] EWHC 2906 (QB) (lawyers)
The court does not take into account
the defendant’s personal characteristics
1. Those in training to be ‘experts’:
Nettleship v Weston [1971] 2 QB 691
Cf: Mansfield v Weetabix Ltd [1998] 1 WLR 1263
Wilsher v Essex Area Health Authority
[1988] AC 1090
2. Amateurs:
Wells v Cooper [1958]
The court does not take into account the defendant’s personal
characteristics
3. The position of Children – an
exception:
Mullin v Richards [1998] 1 WLR 1304
Orchard v Lee [2009] EWCA Civ 295
4. Date of knowledge:
Roe v Minister of Health [1954] 2 QB 66
CA
Factors relevant to the Standard of Care
1) The Likelihood of Harm
2) The Serioussness of the Consequences
3) The Utility of Defendant’s Conduct - Compensation Act
2006
4) The Cost/Practicability of Taking Precautions
5) The Claimant’s Financial Circumstances
1) The Likelihood of Harm
Bolton v Stone [1951] AC 850 HL (cf. Miller v Jackson [1977])
Haley v London Electricity Board [1965] AC 778
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty, The Wagon Mound (No
2) [1967] 1 AC 617
D negligently discharged furnace oil into sea.
Only small risk that would ignite.
It did…causing damage to P’s ship.
A reasonable person would not ignore even a small risk “if action to eliminate it presented no difficulty, involved no disadvantage and required no expense” (at 642)
2) The Seriousness of theConsequences
Paris v Stepney BC [1951] AC 367
Paris employed by Stepney BC as general garage hand.
Only had sight in one eye.
No protective goggles given.
3) The Utility of Defendant’s Conduct
‘The commercial end to make a profit is very different from the human end to save life or limb.’
Denning LJ in Watt v Hertfordshire CC[1954] 1 WLR 835
3) The Utility of Defendant’s Conduct
The Compensation Act 2006
S 1 Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might-
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
4) The Cost/Practicability of Taking Precautions
Latimer v AEC Ltd. [1953] AC 643
Exceptionally heavy rainstorm – flooded factory floor & oil from channels rose to surface.
Precautions taken, including sawdust.
Plaintiff slipped – heavy barrel crushed ankle.
The trial judge found a breach of common law duty. CA reversed this decision.
5) The Defendant’s Financial Circumstances
lack of funds is generally not a defence for anyone, however...
Knight v Home Office [1990] 3 All ER 237
Mentally disturbed prisoner was known to be a suicide risk.
Hanged himself despite being observed every 15 minutes by staff in prison hospital wing.
Court said not in breach of their DofC towards prisoner, as was not correct to require a prison hospital to provide the same facilities & staffing levels as ordinary psychiatric hospital.
Proof of NegligenceClaimant must make out his/her case on the
balance of probabilities
1) Civil Evidence Act 1968
1) Res Ipsa Loquitor (the thing speaks for itself)
Scott v St Katherine’s Dock [1865] 3 H&C 596
Res Ipsa Loquitor3 conditions:
1)accident could not have occurred without negligence
2)there was complete control by the defendant
3)the cause is unknown to the claimant
Res Ipsa LoquitorSame debate about whether this reversed burden of proof, which makes a difference if it is 50:50.
The view now is that it does not:
Ng Chun Pui v Lee Chuen Tat [1988] RTR 296
George v Eagle Air Services Ltd [2009] UKHL 21
Further Reading Brazier, M and J. Miola “Bye-Bye Bolam: A Medical Litigation
Revolution?”, (2000) 8 Med L Rev, 85-114. Fanning, John BUneasy lies the neck that wears a stethoscope: some
observations on defensive medicine. Professional Negligence. . (2008) Vol 24 (2): 93-103
Grubb, A “Causation and the Bolam Test” 1 Medical Law Review (1993) 241.
Kidner, R “The Variable Standard of Care, Contributory Negligence and Volenti” Legal Studies, (1991) 1.
Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Medical Law Review 1
Mulheron, Rachael, ‘Trumping Bolam: A Critical Legal Analysis of Bolitho’s “Gloss”‘ (2010) 69 Cambridge Law Journal 609
Sheldon, Sally A missed opportunity to reform an outdated law (Guest Editorial). Clinical Ethics, (2009) 4: 3-5.
Williams, K “Res Ipsa Loquitur still speaks” (2009) 125 LQR, 567-70. Williams, K Politics, the media and refining the notion of fault:
section 1 of the Compensation Act 2006. Journal of Personal Injury Law. (2006) 4: 347-353