Breach of duty


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Breach of duty

  1. 1. Breach of Duty<br />By Kenisha Browning<br />Kenisha Browning<br />
  2. 2. The nature of breach – the reasonable man<br /> Once it has been established that a duty of care<br />exists, the claimant must satisfy the court that the<br />defendant broke that duty of care by failing to<br />reach the standard of care required The standard<br />of care is that of the ‘reasonable man’, which<br />comes from the definition from Baron Alderson in<br />Blyth V Birmingham Waterworks Co. (1856).<br />‘ 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’.<br />Kenisha Browning<br />
  3. 3. The nature of breach- the reasonable man<br />The reasonable man is the ordinary<br />Person performing the particular<br />task: he is expected to perform it<br />reasonable competently. Thus,<br />when I am riding my bicycle, I am<br />expected to be a reasonable<br />competent cyclist. This is an<br />objective standard; the<br />peculiarities of the person<br />performing the task are irrelevant. <br />Kenisha Browning<br />
  4. 4. Factors affective the standard of care of the reasonable man<br /> When the court looks at whether a duty of care has been breached, it bases the standard on the reasonable man performing the task in the circumstances. There are, therefore a number of factors that can be considered to raise or lower the standard. This is logical because a reasonable persona will rightly take greater risks in an emergency, and take more care when the risk of harm is greater. For example. I may well damage a person’s clothing or cause minor injuries when pulling a person from a burning car; equally, I will be more careful when carrying a young baby than when carrying a sack of potatoes. <br />Kenisha Browning<br />
  5. 5. These differences can be put into various <br />categories for ease of explanation and<br />illustration. Commonly used questions to<br />define the categories include:<br />Are there any special characteristics of the defendant?<br />Are there any special characteristics of the claimant?<br />What is the size of the risk?<br />Have all practical precautions been taken?<br />What are the benefits of taking the risk?<br />Factors affective the standard of care of the reasonable man<br />Kenisha Browning<br />
  6. 6. Are there any special characteristics of the defendant? <br />The defendant is expected to be a reasonable competent<br />person performing the task. This is straightforward when<br />dealing with everyday people doing everyday tasks. In<br />Wells V Cooper (1954), a man fitted a new door handle to<br />the outside of the back door of his house. The door was <br />at the top of some steps. The door was difficult to close =<br />on the day the accident happened as there was a high wind<br />blowing against the door. The claimant was leaving the house<br />and pulled hard on the door to shut it. The handle came away<br />in his hand and he fell down the steps and was injured. The<br />court decided that a reasonably competent carpenter would<br />have done the work to a similar standard as the man doing DIY<br />on his house, so he has reached the standard of a reasonable<br />competent person attaching a door handle. <br />Kenisha Browning<br />
  7. 7. Are there any special characteristics of the defendant? <br />The position is much the same when<br />dealing with a professional. When you go<br />to hospital for an operation, you expect<br />the same standard from your surgeon<br />whether it is his first operation ever or not.<br />The test here is whether his operating to the<br />standard expected under a known and<br />accepted procedure. This can be seen from<br />the case of Bolam V Friern Barnet Hospital<br />Management Committee (1957). <br />Kenisha Browning<br />
  8. 8. Bolam V Friern Barnet HospitalManagement Committee (1957). <br />Bolam was suffering from mental illness and was advised by a<br />consultant attached to the defendants’ hospital to undergo<br />electro-convulsive therapy. This is a form of electric shock<br />treatment. He signed a form of consent to the treatment but was<br />not warned of the risk of breaking a bone whilst strapped down and<br />being given electric shocks. On the second occasion when the<br />treatment was given to him he suffered a broken bone. The hospital<br />did not use relaxant drugs that would have prevented the risk of a<br />broken bone. Among the medical experts, however, there were two<br />bodies of opinion, one of which favoured the use of relaxant drugs<br />as a general practice, and the other of which confined the use of<br />relaxant drugs to cases where there were particular reasons for their<br />use. These reasons were not present in Bolam’s case. The hospital<br />had reached the standard practice expected and so had not broken<br />their duty of care.<br />Kenisha Browning<br />
  9. 9. Finally, it should be noted that where a<br />reasonable man cannot know that a standard<br />procedure is in fact dangerous, he will not<br />break the duty of care. This is because the<br />reasonable man is not expected to know and<br />protect against risks of harm that are not yet<br />known scientifically. Once the risk is known,<br />there can be a breach of duty, This is<br />illustrated by the case of Roe V Minister of<br />Health (1954) <br />Are there any special characteristics of the defendant? <br />Kenisha Browning<br />
  10. 10. Roe V Minister of Health (1954) <br />In that case, the claimant was injected with an<br />anaesthetic contained in glass ampoules which<br />were, prior to use, immersed in an antiseptic<br />solution. The object of this was to keep the risk of<br />infection to a minimum. Unfortunately, the<br />claimant suffered a permanent paralysis from the<br />waist downwards, as the anaesthetic had been<br />contaminated by antiseptic which had seeped through<br />invisible cracks in the ampoules. At the time the risk<br />of this happening was not appreciated by competent<br />anaesthetists in general, and such contamination had<br />not happened before. Therefore the duty of care owed<br />by the hospital had not been broke.<br />Kenisha Browning<br />
  11. 11. Are there any special characteristics of the claimant?<br />The reasonable man takes more care where the situation demands<br />it. This factor relates to risks known to the defendant as a result of<br />peculiarities of the claimant. This is illustrated by the care Paris V<br />Stepney Borough Council (1951). Here the claimant was employed<br />as a fitter in a garage. His employer, he local council, knew he had<br />the use of only one eye. While he was using a hammer to remove a<br />bolt on a vehicle a chip of metal flew off and entered his good eye.<br />This resulted in his becoming totally blind. The council did not<br />provide goggles for him to wear, in 1950, it was not common<br />practice for employers to supple goggles to men employed in<br />garages on the maintenance and repair of vehicles. So had Mr Paris<br />been fully sighted, the council might not have broken their duty of<br />care. Because the council knew he was blind in one eye when they<br />employed him, the court decided that the council owed him a<br />higher standard of care because of this known, increased, risk. <br />Kenisha Browning<br />
  12. 12. Walker V Northumberland county council (1995)<br />This principle applies equally to illness. In Walked V<br />Northumberland County Council (1995) the claimant was a social<br />services manager who had been forced, because of local<br />authority funding shortages, to take on a far higher volume of<br />work than he could cope with, He suffered several weeks of<br />being unable to work because of a stress-related illness. This<br />then became a special characteristic of Mr Walker known to the<br />defendant. When he returned to work the local authority made<br />little or no effort to improve his situation. The claimant then<br />suffered another long period of illness. The court referred to the<br />principle in Paris V Stepney Borough Council(1951) that the<br />standard of care expected of an employer is raised if the<br />employer knows that an employee is more likely to suffer injury.<br />Thus the claimant was owed a higher standard of care that had<br />been broken. <br />Kenisha Browning<br />
  13. 13. Are there any special characteristics of the claimant?<br />Another example of this is that a higher standard of<br />care is expected by organizers and sports coaches to<br />disable athletes because of their special needs; this<br />can be seen in the case of Morrell V Owen (1983). The<br />facts of that case were that at a sports event for<br />disabled athletes, archery and discus activities took<br />place in the same hall, separated by a curtain, which<br />billowed out from time to time when struck by a<br />discus. The claimant was an archer, and was close to<br />the curtain when a discus struck her head (through the<br />curtain) and caused brain damage.<br />Kenisha Browning<br />
  14. 14. What is the size of the risk?<br />The principle is that the greater the risk, the<br />more care need be taken. To some extent this <br />is an extension of the ides behind the previous<br />factors. The reasonable man takes more<br />precautions where the risk is greater, but does<br />not take precautions against highly unlikely<br />events. The classic case on this factor is Bolton<br />v Stone (1951). <br />Kenisha Browning<br />
  15. 15. Bolton v Stone (1951).<br />During a cricket match a batsman struck a ball which hit a person who<br />was standing outside her house on the road outside the ground. The<br />ball was hit out of the ground over a protective fence five metres high.<br />The distance from the striker to the fence was about 70 metres and<br />that to the place where the person was hit nearly 100 meters. The<br />ground had been used as a cricket ground for about 90 years, and only<br />on six occasions in the previous 30 years had a ball been hit out of the<br />ground in that direction and no one had previously been injured. The<br />court decided that the risk of injury to a person from a ball being hit<br />out of the ground was so small that the probability of it happening<br />would not be anticipated by a reasonable man. Therefore the cricket<br />club had not broken its duty of care as it had reached the appropriate<br />standard of care. The club had clearly thought about the risk and<br />provided a reasonable solution. <br />Kenisha Browning<br />
  16. 16. Haley V London Electricity board (1964)<br />A combination of this factor and a person with a disability can be<br />seen in the case of Haley V London Electricity Board (1964). A<br />blind man was walking along the pavement on his way to work.<br />He was using his white stick to go along a route he knew very<br />well. The electricity board had opened a trench and warned of it<br />in the then conventional manner of laying a tool on the ground to<br />force people to walk round it. The blind man did not notice the<br />tool with his stick and fell over it into the trench. The court<br />Decided that it was reasonably foreseeable that a blind person<br />might be in the area as about one in 500 people is blind or<br />Partially sighted. Thus the reasonable man would take<br />precautions to prevent such an accident happening as it was a<br />reasonable risk to protect against and not a fantastic possibility.<br />Of course, today’s procedure for warning of such an obstacle<br />protects against this risk.<br />Kenisha Browning<br />
  17. 17. Have all practical precautions been taken?<br />It follows from the previous factor that a<br />defendant will have acted reasonable if he has<br />taken reasonable precautions. Thus the nets<br />around the cricket ground in Bolton V Stone(1951)<br />were a reasonable precaution, but the tool left on<br />the ground was not in Haley V London Electricity<br />Board(1964). The idea behind this factor is that<br />the reasonable man will do all he reasonably can<br />to prevent harm coming to others. In situations<br />that are unexpected, this may not always prevent<br />an accident, but the key is the reasonableness of<br />the action taken. <br />Kenisha Browning<br />
  18. 18. Have all practical precautions been taken?<br />In Latimer V AEC (1952) the defendant’s factory<br />was flooded after an exceptionally heavy<br />rainstorm. The water, mixed with some oil, made<br />the floor very slippery. The defendant put up<br />warning signs, passed the message round the<br />workforce and used all their supply of sand and<br />sawdust to try to dry the floor. Despite this, the<br />claimant slipped and was injured. The defendant<br />owed a duty of care to the employees, but had not<br />broken the duty as the precautions taken to<br />prevent an accident were sufficient in the<br />circumstances as all reasonable practical<br />precautions had been taken. <br />Kenisha Browning<br />
  19. 19. What are the benefits of taking the risk?<br />This factor is sometimes called public utility. The<br />idea is that there is a lower standard of care when<br />reacting to an emergency. This is consistent with the<br />idea of fair, just and reasonable in the third part of the<br />test to establish a duty of care. The most famous<br />example of this is Watt V Hertfordshire County Council<br />(1954). This case concerns fire-fighters, who were<br />injured by lifting gear when travelling in a vehicle not<br />specifically fitter for carrying that gear. The vehicle<br />that the fire-fighters should have used was adapted to<br />carry the gear. However, that vehicle was already in use<br />attending an emergency when the call came to go to<br />another emergency where a woman was trapped under<br />a heavy vehicle. <br />Kenisha Browning<br />
  20. 20. Watt V Hertfordshire County Council(1954)<br />The court held that the firemen were ready to<br />take the risk of using the vehicle to save life.<br />The court must ‘balance the risk against the<br />measures 'and the benefit of saving the woman<br />was greater than the risk of injuring the fire<br />fighters by using a vehicle not suited to<br />carrying the heavy gear which moved and<br />crushed a fire-fighter. Thus the duty of care<br />owed by the council to its employee fire<br />fighters had not been broken. <br />Kenisha Browning<br />
  21. 21. What are the benefits of taking the risk?<br />The approach of the courts is very realistic when<br />an emergency arises as the courts want to<br />encourage rescuers on the one hand, but also want<br />to make sure employers are not put off<br />encouraging employees to effect a rescue by the<br />threat of being sued in negligence because they<br />had not taken all reasonable precautions. In<br />another recent case, Day V High Performance<br />Sports (2003), Ms Day, a reasonably experienced<br />climber, fell while climbing on an climbing wall<br />belonging to the defendant. <br />Kenisha Browning<br />
  22. 22. Day V High Performance Sports (2003)<br />Unfortunately, she suffered a serious brain injury.<br />At a height of 30 feet she had discovered she was<br />not tied to her top rope and had had to be rescued<br />by the duty manager because she was ‘frozen’ in<br />her position. The court recognised that this was<br />An emergency situation and that the circumstances<br />of the emergency had to be taken into account. In<br />fact the centre was one where a concern for safety<br />was prominent and workshops on safety were given<br />to employees. The court concluded that the<br />climbing centre had not broken its duty of care<br />and had reached the standard of care of a<br />reasonable competent climbing centre. <br />Kenisha Browning<br />
  23. 23. Summary of cases<br />Wells V Cooper (1954) – The standard of care required is of the<br />reasonably competent person doing the job in question. Here a man<br />doing DIY was expected to reach the standard of a reasonably competent<br />professional doing the job.<br />Bolam V Friern Barnet Hospital Management Committee(1957) – The<br />standard of a professional is judged by the standard of the profession. In<br />this case, following either of two accepted medical methods was said to<br />be acceptable in reaching the standard of care excepted. <br />Bolitho V City and Hackney Health Authority (1997)- When judging<br />the standard of care required by professionals, the court can decide that<br />the normal standard of acceptable conduct set by the profession is not<br />high enough and the defendant has therefore broken his duty of care.<br />Roe V Minister of Health(1954) – the reasonable man cannot take<br />precautions against unknown risks. He will only break his duty by failing<br />to take precautions when the risk becomes known.<br />Kenisha Browning<br />
  24. 24. Summary of Cases<br />Paris V Stepney Borough Council (1951) – where a defendant knows of an<br />increased risk to the claimant, more care must be taken. The council knew he<br />only had one good eye so needed to do more than usual to protect the other.<br />Walker V Northumberland Council (1995) – where an employee has already<br />had time off work with an illness or injury, the employer must then take more<br />care to avoid a repeat or more serious illness. In this case it was stress- related.<br />Bolton V Stone (1951) – the reasonable man takes precautions against<br />reasonable risks, not fantastic possibilities. The likelihood of a cricket ball<br />clearing the protective fence at the ground and a passer-by was not a risk the<br />reasonable man would protect against. <br />Haley V London Electricity Board (1964) – a reasonable risk to protect against<br />is one that is statistically likely to occur, In this case, a blind pedestrian was not<br />adequately warned of a trench across the pavement. <br />Kenisha Browning<br />
  25. 25. Summary of cases<br />Latimer V AEC (1952) – one factor in deciding<br />whether the defendant has acted as a reasonable<br />man is taking all practical precautions. After a<br />flood, this was doing the best to mop up and<br />warning the employees in the factory. <br />Watt V Hertfordshire County Council (1954) –<br />the benefits of saving a woman’s life outweighed<br />the risk of injury to a fire-fighter when using the<br />best, but still unsuitable vehicle in an emergency. <br />Day V High Performance Sports( 2003) – The<br />standard of care can be lower when making a<br />rescue, in this case on a climbing wall. <br />Kenisha Browning<br />
  26. 26. Conclusion <br />Breach of duty is concerned with the question<br />of whether the defendant had reached the<br />standard of care of a reasonable man. There<br />are a number of factors that are relevant to<br />this duty which raise or lower the standard<br />expected. <br />Kenisha Browning<br />