Breach of Duty

In order for a defendant to be liable they must not only owe a duty but they must also breach that duty. Whether the defendant has breached a duty is a question of fact for the Judge to decide and it involves a 2-stage test.

The court first assesses how the defendant ought to have behaved, in other words what standard of care should the defendant and exercised. Then the court decides whether the defendant’s conduct fell below the required standard. The former of these is a question of law, the second is a question of fact.

The defendant’s conduct will be measured against the required standard of care to determine whether there has been a breach. In Blythe -v- Birmingham Waterworks (1856) it was said that negligence is the admission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Accordingly the defendant must meet the standard of a reasonable man. The defendant is required to take as much care as would be taken by a reasonable person.

The reasonable person has been described as “man on the bus” or the “man on the street”. This is someone who is not very intelligent nor very stupid nor overly cautious or overly optimistic.

The test is an objective one. The courts don’t take account of personal attributes of the defendant. The test is also impersonal. The question is what a reasonable person would have foreseen in the particular circumstances.

There might be different standards applied to skilled defendants, for example, doctors. Consider the case of Bolam -v- Friern Hospital Management Committee. Here the House of Lords said that a doctor must show a greater degree of skill and care than a reasonable person in the street. A doctor must show the same reasonable degree of skill as a reasonable doctor. They must in other words meet the standard of their profession. Another principle from Bolam is that as long as the defendant’s actions are supported by a reasonable degree of professional opinion they should not be judged to be negligent. However this could lead to a situation in which members of a profession were the judges of negligence rather than the court itself. Case law has accordingly recognised that it is always for the court to finally decide whether a skilled defendant has acted reasonably.

There are other scenarios which give rise to specific considerations. For example, the under-skilled defendant. In Nettleship -v- Weston, the claimant who was an experienced driver agreed to give a friend’s wife some driving lessons in her husband’s car. The inexperienced driver failed to straighten up after turning left and panicked and the car was caused to crash into the claimant. The Court of Appeal heard that the duty of care owed by the learner driver to the passenger instructor was the same objective and personal standard as that owed by every driver. The standard was not affected or reduced by the reasonably instructive knowledge or the learner’s lack of skill and experience. Accordingly where the learner has driven without due care and attention she was in breach of her duty to the claimant and was liable.

Therefore a learner driver even on their first drive is expected to reach a standard of a reasonably competent driver. This may seem harsh but it is mitigated by the fact that the liability insurance is compulsory in the case of drivers.

The test for a standard care of negligence is objective and impersonal. The court will determine the standard required for each activity or task in question. The defendant must meet that standard and no allowance will be made for his lack of qualification, skill or experience. It is however relevant to look out for whether the defendant has held himself out as possessing a particular level of skill. If they do so then it may be necessary for them to meet a higher standard than the normal person in the street. If the defendant does not profess to have a particular level of skill they may not be required to meet a higher professional standard however they must meet the minimum standard required by the task undertaken.

There are additional special standards which apply to children. In the case of Mullin -v- Richards (1998) 1 all ER920 the claimant and the defendant were both 15-year-old schoolgirls. They engaged in a mock sword fight using rulers whilst at their desks. One of the rulers snapped and a fragment of plastic entered the claimant’s eye. She lost all sight in that eye. The claimant sued the defendant and the Education Authority for damages for negligence. The Court of Appeal held that the standard of care is adjusted only for the child’s age. The question for the Judge was not whether the action of the defendant was such that an ordinary prudent and reasonable adult in the defendant’s situation would have given rise to a risk of injury, it is whether an ordinary, prudent and reasonable 15-year-old schoolgirl in the defendant’s situation would have realised as much. On that basis the defendant was found not to have breached her duty of care.

Accordingly a child defendant will be expected to take such care as can be reasonable expected of an ordinary child of the same age.

As regard to the child’s ability to be sued, a child under age 18 cannot be sued or sue unless he has an adult to represent him.

In determining the degree of care that can be expected of a reasonable person, the courts will take into account all the circumstances of the case. In general terms the court will have to assess:

  1. The risk created by the defendant’s activities and
  2. The precautions which the defendant ought to have reasonably taken in response to that risk. There are some factors which will always be relevant and can be regarded as guidelines.

The first relevant consideration is the magnitude of the risk. This considers firstly how likely was it that the defendant’s actions could cause injury and secondly, if an injury was caused, how serious was it likely to be. This is considered in the case of Bolton -v- Stone (1951) in which the claimant was injured by a ball hit from the inside to the outside of a cricket ground. The claimant sued the cricket club. The claimant was standing in the street outside the ground. The ball had cleared the boundary fence which was 7ft high. The court held that the defendants were not in breach of their duty of care. Although the accident was foreseeable it was very unlikely to happen so a small risk was not a breach.

This decision recognised that it is justifiable not to take steps to eliminate a real risk if the risk of injury is small and the circumstances are such that a reasonable person would think it right to neglect it. In the case of Fardon -v- Harcourt-Rivington 19320 all ER Rep81, it was stated that the duty is only to do what is reasonable, but the defendant’s duty is to guard against “reasonable possibilities not fantastic possibilities”. In this case the defendant left his dog in a parked car, the dog broke a window, the claimant passing by was blinded by a splinter of glass. This was such a fantastic possibility that the defendant was not held liable.

The more serious the possible harm to the claimant the more care the defendant must take. For an illustration of this, see the case of Paris -v- Stepney Borough Council 1951 AC367.

Another relevant consideration is the cost and practicability of precautions that would need to be taken to avoid the risks. If the risk of such an injury could have been substantially reduced at a low cost to the defendant, the defendant will have acted unreasonably as he failed to take the necessary precautions. On the other hand if the defendant would have incurred great expense which would result in a very small reduction in risk, it would be reasonable for the defendant to do nothing. See for example the case of Latimer -v- AEC Limited in which the defendant’s factory was flooded and the water mixed with an oily liquid leaving the floor slippery. The defendant spread sawdust over most of the floor but did not leave enough to cover it all. Prior to that a workman slipped and was injured. The claimant sued on the basis that the factory ought to have been closed. The court held that the defendant was not in breach of duty. The risk of injury was only slight while the cost of inconvenience would totally eradicate the risk by closing the factory would have been substantial.

The first factor in considering whether a breach has occurred is the defendant’s purpose in undertaking the activities that led to the breach. If the defendant’s purpose is in the public interest, the defendant is less likely to be held liable and negligent. The claimant is therefore more likely to succeed where injured in the course of a commercial enterprise carried on by the defendant than in the course of a lifesaving enterprise. This is illustrated in the case of Watt -v- Hertfordshire County Council (1954) 1 WLR835. This was a case involving firemen called to an emergency where a woman was trapped under a lorry. Here the court held that the claimant’s employees were not in breach of a duty of care on the basis that the risk of injury had to be balanced against the end to be achieved by the saving of life and justified for taking the considerable risk.

A defendant may also be able to escape liability if they can show that they comply with an acceptable practice in their trade or profession. The earlier case of Bolam and Friern Management Committee illustrates the point. Compliance with an accepted trade practice can be strong evidence that a defendant has not been negligent but is not necessarily conclusive. Again the court will take a holistic view of whether a breach has occurred.

Further in this regard, it will often be necessary for the court to consider the current state of knowledge as to surrounding a particular breach. In Rowe -v- Ministry of Health (1954) 2QB66 the claimant went to hospital for a minor surgery but emerged permanently paralysed from the waist down. The reason for this had been seepage through invisible cracks in glass in which the anaesthesia was stored. The risk of seepage was not known at the time and so the defendant could not have reasonably taken precautions to avoid it.

Proving Breach of Duty

The burden of proving the defendant’s breach of duty of care lies with the claimant and they must prove their case on a balance of probabilities. The usual way for a claimant to prove a breach of duty is by using witness evidence. These can be witnesses of fact or expert witnesses which could give evidence as to a particular state of knowledge or a particular trade practice etc.

The claimant must then show that their loss was caused by a breach of duty on the part of the defendant. If there are no witnesses to describe how a particular accident happened the claimant may have no direct evidence to show that the defendant was in breach of a duty of care. However in small number of cases a court may be able to drawn an inference of negligence against the defendant without hearing detailed evidence on what the defendant did or did not do. This gives rise to a principle, res ipsa loquitur. This translates as “the thing speaks for itself”. Circumstances in which that doctrine may be available were considered in Scott -v- London & Catherine Docks Co. in which the claimant was walking near to a warehouse belonging to the defendant where bags of sugar were being loaded by the defendant’s employees using a hoist. A bag of sugar fell from the hoist injuring the claimant. There were no witnesses, so the claimant had no direct evidence of any failure to exercise reasonable care on behalf of the defendant’s employees.

This gave rise to 3 conditions being set down for the exercise of res ipsa loquitur. These are:

  1. The thing causing damage must be under the control of the defendant or someone for whom the defendant is responsible;
  2. The accident must be such that it would not normally happen without negligence;
  3. The cause of the accident must be unknown to the claimant so that the claimant has no direct evidence of the failure of the defendant to exercise reasonable care.

It should be noted that the finding of these 3 circumstances only occur in very rare cases.