8.

Breach of Duty

8.1 Introduction

Having established that the defendant owed the claimant a duty of care, it is
then necessary to examine if that duty was breached. This is a two-stage
approach; firstly, consider what standard of care was expected of the
defendant and then, secondly, go on to consider whether the defendant's
behaviour fell short of the required standard.

8.2 The Standard of Care

8.2.1 The General Rule

The usual rule is that the defendant must behave as a reasonable man would
in the circumstances. This is an objective standard. The defendant will only
be liable if he falls short of this standard.
Blyth v Birmingham Waterworks (1856) 11 EX 781
"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".
In reality this standard is inexact and can be manipulated by policy
consideration as to what the hypothetical reasonable man would or would not
do.

8.2.2 The Higher Professional Standard

In certain circumstances the courts have required a higher standard of care
from
the defendant, based on what the reasonable professional in that field would
have done.
"A man need not possess the highest expert skill at the risk of being found
negligent .... it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art" - Bolam v Friern Mental
Hospital [1957] 2 All ER 118
Therefore a professional must act as a reasonable professional in the light of
knowledge and practice current at the time he acted.
Roe v Ministry of Health [1954] 2 QB 66 - No liability because, at the time,
no reasonable anaesthetist would have known of the risk of the anaesthetic
being contaminated in the way it was.
In Sidaway v Governors of Royal Bethlem Hospital [1985] 1 All ER 643 it
was suggested that a doctor would not be negligent if he acted in accordance
with practices accepted as proper by a responsible body of medical opinion.
This has the rather worrying implication that the standard of care would
depend upon "the judgment of doctors"- per Lord Scarman. However, it seems
likely that the courts would concern themselves with what a responsible body
"ought to" do, not necessarily what they actually do.
This was considered in Bolitho v Hackney Health Authority,(1997) where
the House of Lords held that it was open to the courts to rule whether a body
of medical opinion was reasonable or not.

8.2.3 The Lower Standard

The courts are reluctant to accept a lower standard than that of the
reasonable man. However, in the case of children it seems that the test will
be that of the reasonable child of the defendant's age.
In McHale v Watson (1966) 115 CLR 199 the Australian Court accepted that
a child should be judged according to this test but refused to take into account
any of the child's other personal characteristics.
In contrast, in Canada the courts take into account the child's intelligence
and experience as well as its age - McEllistrum v Etches (1956) 6 DLR 1
In Mullin v Richards (1998) 1 WLR 1304 the English court decided that it
preferred the approach in McHale. The test was whether the defendant, a 15
year old girl, who had been messing around with a ruler, had behaved as a
reasonable or ordinary 15 year old girl. No account should be taken of any
more personal characteristics of that particular child.
However, the lower standard is not applied to adults, regardless of the fact
that they may be inexperienced and doing their best in the circumstances.
In Nettleship v Weston [1971] 2 QB 691, a learner driver was required to
drive to the standard of a reasonable driver, notwithstanding the fact that the
claimant, her instructor, knew she was only learning to drive.
In Wilsher v Essex Health Authority (1988) 1 All ER 871 a junior doctor
was judged by the standard of the reasonable doctor in that field of medicine,
regardless of his own inexperience.
These decisions, although harsh on the defendant, have been justified on
policy grounds and on the need to have an easily ascertainable standard.

8.2.4 Problem Cases

In some situations it may not be clear what standard to apply and the Court
of Appeal in Wilsher v Essex suggested that the test should be based "on the
act and not the actor".
This means that the task being performed will determine the standard of care.
If it is something normally undertaken by the ordinary man, then the test will
be that of a reasonable man. If it is a more complex task normally undertaken
by a professional then the higher standard will be expected.
In Phillips v Whiteley [1938] 1 All ER 566 a jeweller who undertook ear
piercing was required to possess the skill of the reasonable jeweller, not that
of a surgeon.
In Wells v Cooper [1958] 2 QB 265 a DIY fanatic was required to reach the
standard of the reasonable man not that of the experienced carpenter, since
the task he had undertaken was normally performed by ordinary man. It
might have been a different story if he had undertaken complicated electrical
rewiring.
If the defendant takes on a task that he ought to know is beyond his
capabilities, then that may be evidence in itself of negligence - see Greaves v
Baynham Meikle [1975] 3 All ER 99.
However, professionals who claim to possess greater skill than that normally
possessed by a member of their profession are still judged by the standard of
the reasonable member of the profession. They may nevertheless be liable for
breach of contract in certain situations if they fail to deliver the higher level
of skill promised - Wimpey Construction v Poole (1984) 2 Lloyds 499.

8.3 Factors Indicating Breach

Having set the standard required of the defendant, it is then necessary to look
at various factors and see whether, on balance, the defendant has fallen short
of the required standard.

8.3.1 The Likelihood of Injury

The more likely someone is to get injured, the more likely there will be a
breach. A defendant does not have to guard against incredibly small risks of
injury.
In Bolton v Stone [1951] AC 850 the claimant was injured by a cricket ball
that was hit out of the cricket ground. The chances of that happening and
thereby injuring someone were so slight that there was no breach of duty.

8.3.2 The Seriousness of the Injury

If the injury would be serious then greater care will be needed than if any
risked injury were to be slight.
In Paris v Stepney Borough Council [1951] AC 367 the risk to the claimant
was that of blindness, a serious risk which was not justified.

8.3.3 The practicality of precautions

It is also necessary to look and see how easily the risk could have been avoided
and to balance the cost and practicality of these precautions with the severity
of the risk.
In Latimer v AEC [1953] AC 643 the claimant had slipped on the defendant's
floor. The defendant had taken some precautions, but the only way to
guarantee safety would be to cease operating the factory, or employ many
more people to mop up spills, neither of which were justified given the small
risk of injury to the claimant.
However, as the risk of injury increases, so must the precautions taken by
the defendant - see Read v Lyons [1946] 2 All ER 471, a case involving an
explosion at a munitions factory.

8.3.4 The Utility of the Defendant's Conduct

If the defendant has taken a risk with the aim of preserving or protecting life,
limb or property, then this may in some circumstances be justified.
In Watt v Hertfordshire County Council [1954] 1 WLR 835, a fireman was
injured by falling equipment on a fire lorry. The equipment had not been
properly secured as the crew were attending an emergency. There was no
breach, as the risk of injury was small and the ultimate aim to save life
justified the taking of the risk.
However, in Ward v LCC [1938] 2 All ER 341 there was negligence when a
fire engine jumped a red traffic light. The risk of injury to the claimant was
too high to have been run, even though the case involved the emergency
services.

8.3.5 Known weakness of the claimant

If the defendant is aware that the claimant is less able to take care of
themselves, or is at greater risk, then the defendant will be required to
exercise more care.
In Paris v Stepney Borough Council [1951] AC 367 the defendants knew
that the claimant had only one eye. They should therefore have taken greater
care to ensure he wore protective goggles.
In Yachuk v Oliver Blais [1949] AC 386 the defendants sold petrol to a 9
year old child. They should have realised that the child would not fully
appreciate the dangers of playing with the fuel.

8.3.6 Emergency
If the defendant has been placed in an emergency situation through no fault
of his own, he cannot be expected to behave as he would when not under
pressure.
In Jones v Boyce (1816) 1 Stark 493 the claimant jumped from a runaway
coach injuring himself. It was claimed the claimant was contributorily
negligent but this was rejected since he had been in an emergency or dilemma.

8.3.7 Sport
When the defendant is participating in sporting events, the demands of the
game will be foremost in his mind. Provided he uses reasonable care to play
by the rules he will not be liable to other participants or spectators:
Wooldridge v Sumner [1963] 2 QB 43- in respect of a runaway horse injuring
a spectator; Harrison v Vincent (1982) RTR 8 - in respect of a motor cycle
injuring a participant. On the facts of the latter case there was a breach
because maintenance was not included in the "pressure of the sport"
situation. See also Condon v Basi [1985] 2 All ER 453, a case involving
footballers.

8.3.8 Usual Practice

If a defendant can show he has acted in accordance with a practice usually
followed by others in that field, he may well escape liability.
Maynard v West Midlands AHA [1984] 1 WLR 635 where a doctor
conforming to practice adopted by a reasonable body of medical opinion was
not negligent.
However, the court can always rule that the common practice is itself
negligent as it did in the case of the Herald of Free Enterprise (1988)
Independent 18th December where the common practice of sailing with the
ferry's bow doors open was declared negligent. See also Bolitho v Hackney,
where this was extended beyond areas of obvious commonsense to areas of
professional judgment
8.3.9. Defendant’s illness or disability
If the defendant is unaware that his actions are being affected by illness or
disability, then he will not be at fault, as in Mansfield v Weetabix Ltd ( 1998)
1 WLR 1263. In this case the defendant was driving a lorry, when he started
to suffer from hypoglaecemia, which starved his brain of oxygen. He crashed
the lorry. The standard of care required was that of the reasonable driver, and
since the defendant was not aware that his abilities were impaired, nor could
he reasonably have known that, he was not at fault in continuing to drive.

8.3.9 S1 Compensation Act 2006 - 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.
8.3.10 . Social Action, Responsibility and Heroism Act 2015
This is a very short piece of legislation that the government considered would
help people who were worried about assisting for fear of being sued. It has
been criticised as vague and leading to greater uncertainty, in particular as
to what heroically and predominantly responsible mean.

It is not intended that this Act changes negligence per se, but it remains to be
seen what is impact will be.

“S2 - Social action

The court must have regard to 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.

S3 - Responsibility
The court must have regard to whether the person, in carrying out the activity
in the course of which the alleged negligence or breach of statutory duty
occurred, demonstrated a predominantly responsible approach towards
protecting the safety or other interests of others.
s4 - Heroism
The court must have regard to 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.”

8.4 Proof of Breach (NOT NEEDED IN EXAM)

8.4.1 Introduction
The claimant must prove that the defendant breached the duty of care, i.e.
the claimant bears the legal burden of proof. In order to discharge this, the
claimant must show that on the balance of probabilities, there is a breach.
Therefore, the obligation is on the claimant to collect evidence that will show
that it is more likely than not that the defendant breached his duty. This can
often be a very difficult task, although the claimant may be assisted by section
11 of the Civil Evidence Act 1968, or by invoking the maxim Res Ipsa Loquitur
(see below).

8.4.2 S.11 Civil Evidence Act 1968

If the incident that caused the claimant’s injury led to a criminal prosecution
being brought against the defendant, then the claimant may be helped by
relying on any conviction that has resulted. The claimant must mention the
conviction in his pleadings and state that he intends to use it as proof of
negligence. The court in the civil case will then infer negligence unless the
defendant can disprove this. This is common in road traffic accidents or
accidents at work which may breach Health and Safety Regulations.

8.4.3 Res Ipsa Loquitur

(a) Requirements
This means that "the facts speak for themselves". The maxim is used in
situations where the only plausible explanation for the claimant's injuries is
that the defendant has been negligent. It is then for the defendant to adduce
evidence which might suggest otherwise. It therefore helps a claimant who
would not otherwise be able to prove exactly what happened.
In Scott v London and St. Katherine's Dock (1865) 3 H and C 596the claimant
was injured when a number of large sacks of sugar fell onto her. She could
not explain how this had occurred. However, since the sacks were in the
defendant's control, the court was prepared to infer that the defendant had
been negligent
It is essential to show that the "thing" that caused the accident was in the
defendant's control or that of his servants. If there is the possibility of outside
interference then the maxim cannot be used. Contrast the case of Gee v
Metropolitan Railway (1873) LR 8 QB 161, where the maxim applied to the
unexplained opening of an underground train door, with the case of Easson
v London and N.E. Railway [1944] KB 421 where it failed in respect of the
open train door.
The accident must also be the kind of thing which would not normally happen
without negligence. If there could be an innocent explanation, then the maxim
must fail.
(b) The effect of the maxim
There have been two views as to the effect of the maxim. The first view,
expressed in Colvilles v Devine [1969] 1 WLR 475, is that the maxim creates
an inference of negligence which the defendant should provide an explanation
for. However, at the end of the day, the claimant must still prove his case.
The second view, in Henderson v Jenkins [1970] AC 282 is that the maxim
then puts the legal burden of disproving negligence on the defendant.
This is harsh on the defendant, as in Ward v Tesco Stores [1976] 1 WLR
810where the defendants were liable when the claimant slipped on yoghurt
on their supermarket floor.
More recently the Privy Council has stated that the first view is to be preferred
- the legal burden of proving negligence rests with the claimant. The maxim
has the effect of requiring the defendant to provide answers and explanations,
but it is still for the claimant to prove negligence - Ng Chun Pui v Lee Chuen
Tat (1988) RTR 298