TORT LAW

LECTURE 5 –
BREACH OF DUTY
Ms Gallop
INTRODUCTION
 Liability in the tort of negligence is premised
on fault – it must be shown that the
defendant was in breach of his duty to take
reasonable care of the claimant (assuming
that such a duty existed).
 The test is essentially practical – what would
a reasonable person have done in the
circumstances?
 The link between ‘reasonable person’ and
the ‘foreseeability test’ can be seen in the
case of Bolton v Stone
BOLTON V STONE
 In this case the plaintiff, Ms Stone, was
injured when a cricket ball hit her. The ball
had been hit by a batsman playing a match,
and had travelled 100 yards prior to hitting
her, clearing a fence of 78 yards away from
the hit, which was 17 yards high. Evidence
suggested that the ball had left the ground
only 6 times in 30 years. The plaintiff sued
the club for negligently failing to ensure that
the ball could not be hit out of the grounds.
BOLTON V STONE
 The question for the courts was whether the
defendant had a duty to stop all foreseeable
risks to the claimant, however improbable
they are? Or did the defendant only have a
duty to do so when there was a greater
probability of harm?
 The court held that, even though the injury
was foreseeable, taking such a small risk did
not amount to a breach of duty on the facts.
BOLTON V STONE

 The focus in the case seemed to be on the

degree of probability as the crucial factor as
to whether negligence had occurred.
 However it would be wrong to look at the
question of probability in isolation: it is only
one of the factors which bears upon the
crucial question “whether the risk was such
as would make a reasonable person take
precaution to guard against it”
BOLTON V STONE
 Lord Reid “the test to be applied is whether
the risk of damage to a person on the road was
so small that a reasonable man in the position
of the defendants, considering the matter from
the point of view of safety, would have
thought it right to refrain from taking steps to
prevent the danger”.
 Thus whether or not there has been a breach
of duty is a question of fact.
 In terms of appeals this means that an appeal
cannot interfere with the first courts finding of
primary fact.
BOLTON V STONE
 As decisions of breach are questions of fact,
rather than questions of law, it follows that
the ruling in one case has no precedential
value in another case.
 Thus the judgment from Bolton v Stone does
not decree that all cricket clubs can never be
responsible for injuries sustained from a ball
hit of the ground.
 Thus in Miller v Jackson a cricket club was
liable when balls were hit out into a
neighbouring garden several times a season
WAGON MOUND (NO. 2)
 The defendant owned a freighter ship which
was moored at a dock. The plaintiff owed
two ships that were moored nearby. At some
point in time the Wagon Mound leaked
furnace oil into the harbour and furnace oil
was on top of the harbour water.
 Nearby some welders were working on a
ship. The sparks caused by the welding
ignited the furnace oil, which destroyed all
three ships.
 Should the defendant be liable?
WAGON MOUND NO. 2
 This case set the precedent for foreseeability
and its role in determining whether the
defendant was acting in breach of duty.
 The Privy Council concluded in this case
that:
 (1) in any case when there is more than a
far-fetched possibility of injury to the
claimant, the defendant’s conduct may
amount to a breach of duty if he failed to
take such precautions to remove or minimise
the risk as would have been taken by the
reasonable person.
WAGON MOUND NO. 2

 (2) there is no precise point on the scale of

probabilities that has to be attained before
the finding of negligence is justified and
once the trial judge had held that there is a
remote but not far-fetched possibility that
the oil might catch fire and damage the
plaintiff’s vessel, it was not necessary to
prove additionally that there was any greater
degree of probability that damage might
result
WAGON MOUND NO. 2

 (3) Breach of Duty is determined by looking

at the likelihood of the risk relative to all the
other circumstances of the case, including
the difficulty of taking precautions to guard
against the risk; the real issue is the
practical question whether the risk was such
as to require the taking of precautions.
WAGON MOUND NO. 2

 (4) Here, given the ease of preventing the

oil-spill and the lack of any public benefit
associated with the activity (so in this case
there was no public benefit of spilling oil into
a harbour but generally there is a public
benefit in playing cricket, for example, as in
Bolton v Stone), it was negligent not to take
steps to prevent the oil form leaking because
of the (admittedly slight) risk of fire.
REASONABLE CARE: RELEVANT
CONSIDERATIONS
 As we can see it is not only the degree of
foreseeability of harm which provides the
test for the defendant’s negligence
 The court must thus embark on a practical
enquiry as to what the reasonable person
would do to remove or minimise the risk in
question
 The courts have rejected a systematic
approach to limit the range of factors used in
assessing the reasonableness of the
defendant’s actions
REASONABLE CARE: RELEVANT
CONSIDERATIONS
 An attempt to make a formula for
determining whether the defendant had been
negligent was made in the American case of
United States v Carroll Towing Co where the
judge stated that the test should be:
 P (the probability of the event occurring) x L
(the gravity of the injury if the event was to
occur)
 If that number was more than the B (the cost
of preventing the event) the defendant was
liable (The Learned Hand Formula)
REASONABLE CARE: RELEVANT
CONSIDERATIONS

 This test was rejected as too simplistic, and

not taking into account other factors such as
public benefit etc
(1) GRAVITY OF THE POTENTIAL
HARM

 Paris v Stepney Borough Council – the

plaintiff was employed in a garage owned by
the council. To the council’s knowledge he
only had the use of one eye. Whilst using a
hammer to remove a bolt from a vehicle a
chip of metal flew off and injured his good
eye. The defendant’s did not provide him
with goggles to wear and this was not the
ordinary practice.
(1) GRAVITY OF THE POTENTIAL
HARM
 The court held that the gravity of the injury
was a relevant consideration when assessing
whether the defendant had acted with due
care.
 The majority held that there had been a
breach of duty on the facts of the case, the
severity of the injury for this particular
claimant (that is complete blindness) meant
that the defendant’s were under a greater
duty in this case to provide reasonable care,
than in the case of a completely sighted P
(1) GRAVITY OF THE POTENTIAL
HARM
 This decisions reflects the broader
proposition that the content of the D’s duty
of care must be tailored to the known, or
reasonably foreseeable, characteristics of
the individual claimant.
 The issue arises not only where the claimant
is at risk of more serious injury than other
potential claimants, but also where the risk
is more likely to eventuate (a question of
foreseeability and probable harm). E.g.
Haley v London Electricity Board
(2) THE COST OF PRECAUTIONS
 Latimer v AEC Ltd – as a result of
exceptionally heavy rainstorms the D’s
factory was flooded and the water mixed
with an oily substance on the floor, leaving
the floor extremely slippery. The D’s spread
sawdust on the floor, but not enough to
cover its entirety and the P was injured when
he slipped on an uncovered portion and fell.
 The House of Lords held that the D’s had not
breached their duty of care.
(2) THE COST OF PRECAUTIONS
 It was held that for the D’s to be liable
Latimer must show that the reasonable D’s
would have closed down the factory, which
he failed to do so
 In this case the distribution of sawdust was
reasonable and the D’s not negligent
 Consequently on a cost-benefit analysis
(where the only other way of avoiding
liability would have been closing the factory)
the D’s had acted reasonably
(3) UTILITY OF THE
DEFENDANT’S CONDUCT
 Watt v Hertfordshire County Council – A
lifting jack in the D’s fire station was rarely
used. However whilst the other jack was in
use, the fire station received a call regarding
a woman who was trapped under a car 200 or
300 yards away. The Jack was loaded onto a
lorry but there was no means of securing it.
Whilst travelling the lorry driver had to break
suddenly and the jack moved injuring one of
the firemen.
(3) UTILITY OF THE
DEFENDANT’S CONDUCT

 Held – one must balance the risk against

what the defendant is trying to achieve. Lord
Denning stated that saving life or limb, which
is what the fire fighters were attempting to
do, justified taking a considerable risk. In
this case the risk undertaken was not too
great, considering the means of the
defendant’s conduct.
(3) UTILITY OF THE
DEFENDANT’S CONDUCT
 Tomlinson v Congleton Borough Council – C
suffered serious injuries when he went to the
council’s park, threw himself in for a dive
and hit his head on the sandy bottom. The
lake was used for the public, including for
water sports, but the council prohibited
swimming as they believed it was unduly
dangerous because of the risk of collision
with windsurfers etc. There were prominent
notices telling people not to swim and
rangers enforced a no-swimming policy.
(3) UTILITY OF THE
DEFENDANT’S CONDUCT
 Despite this many continued to swim, thus
the council tried to make the water less
accessible and less appealing. Shortly prior
to the accident the council had approved a
scheme to cover the beaches with mud and
plants, but this was not implemented until
after C’s accident.
 It was held that the Defendants had not
breached their duty of care
(3) UTILITY OF THE
DEFENDANT’S CONDUCT
 According to Lord Nicholls “It seems to me
that Mr Tomlinson suffered his injury
because he chose to indulge in an activity
which had inherent dangers, not because the
premises were in a dangerous state”
 Consequently it was held that the council
had fulfilled their duty of care through the
provisions of signs and wardens, and
Tomlinson had to take responsibility for his
own actions
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT

 Thus the court must put itself in the shoes of

the defendant and ask “would a reasonable
person in the same circumstances as the
defendant found himself, act as the
defendant did?”.
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT
 Roe v Minister of Health – the plaintiff’s
underwent surgical procedures where there
were administered Nupercaine into their
spine, which had been contaminated by
Phenol. After the operation the plaintiff’s
developed spastic paraplegia which resulted
in permanent paralysis from the waist down.
The contamination had occurred because of
invisible cracks in the vials containing the
Nupercaine, and at the time of the operation
this risk was not generally known.
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT
 According to Lord Denning “We must not look
at the 1947 incident with 1954 spectacles.”
 It was held that the micro-cracks were not
foreseeable given the prevailing scientific
knowledge of the time. Thus, since no
reasonable anaesthetist would have stored the
anaesthetic differently, it was inappropriate
to hold the hospital management liable for
failing to take precautions. That the
profession had changed its practice in the light
of experience proved that the profession was
responsible in its self-regulation.
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT
 Wooldridge v Sumner – in this case Mr
Holladay, an experienced horseman, was in a
competition. He galloped round a corner
where there was a cameraman (the
plaintiff), who had been told to move by
competition officials. As the horse turned the
corner the cameraman fell and was injured
by the court.
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT
 Held – the Court found that there was not a
breach of duty in this case. It was held that a duty
and breach of care in this case only arose if the
defendant had caused the damage recklessly or
deliberately.
 As a spectator, Wooldridge accepted the risks
involved in a horserace he came to watch. As a
reasonable participant in the race, which is a fast
and competitive sport, the horseman was
expected to concentrate on the race and not on
the spectator. In the course of a fast moving
competition such as this one, he could be
expected to make errors of judgment.
(4) NEGLIGENCE JUDGED FROM
THE DEFENDANT’S STANDPOINT
 On pitch incidents –
 In Condon v Basi [1985] a claim against an
amateur footballer who broke the claimant’s
leg in a tackle was successful as the play was so
serious and reckless as to be a breach of duty.
 This case shows that bystanders, spectators and
participants of sporting events may all sue for
negligence.
 Several cases regarding professional players
have been successful when careers have been
ended
(5) THE OBJECTIVE STANDARD
OF CARE

 Lack of skill or experience is no defence to

an action in negligence (imperitia non
exculpator)
 The law assesses whether there has been a
breach against an objective standard of care
(5) THE OBJECTIVE STANDARD
OF CARE
 Therefore in the case of Nettleship v Weston – the
D asked the P to teach her how to drive. D agreed
after being covered by the car insurance policy.
During the lesson the D hit a lamp-post after failing
to straighten the car. The P broke his kneecap and
sued for negligence.
 Held - applying a lower standard to the learner
driver because the instructor was aware of her
inexperience would result in complicated shifting
standards. It would imply, for example, that an
inexperienced doctor owed his patient a lower
standard of care if the patient was aware of his
lack of experience.
(5) THE OBJECTIVE STANDARD
OF CARE
 Thus the standard of care for a learner driver
would be the usual standard applied to
drivers: that of an experienced and skilled
driver
(5) THE OBJECTIVE STANDARD
OF CARE
 Inexperience in the Professions:
 Wilsher v Essex Area Health Authority – the
standard of care required of members of a
medical unit was that of the ordinary skilled
person exercising and professing to have that
special skill. The duty was tailored to the
acts which the doctor had elected to
perform, rather than to the doctor himself.
As such inexperience is no defence to
medical negligence.
(5) THE OBJECTIVE STANDARD
OF CARE
 Alternative Medicines:
 Is the practitioner of alternative medicines
to be assessed by the standards of orthodox
medicine?
 Shakoor v Situ – the D was trained in
traditional Chinese herbal medicine and
practised it, but was not qualified as a
doctor in the UK. One of his patients died as
a result of treatment for benign skin
blemishes. Death was an extremely rare and
unpredictable toxic reaction to the medicine
(5) THE OBJECTIVE STANDARD
OF CARE
 Held – the practitioner should not be held to the
standards of orthodox medicine as the patient
themselves had chosen to step outside those confines
when seeking treatment. It was immaterial whether
that decision was enlightened or ill-informed.
 So long, said Livesey QC, as the herbalist complies
with the UK's laws,  so long as the herbalist takes
steps to keep abreast of pertinent information in the
"orthodox" medical journals, it is appropriate to hold
his standard of care to that of what a reasonable
herbalist would do. In this case the prescription had
not been inappropriate for a reasonable herbalist,
and accordingly D was not liable.
(6) PHYSICAL AND MENTAL
DISABILITY
 Mansfield v Weetabix Ltd – the plaintiffs
were the owners of a shop badly damaged
when it was hit by a lorry, driven by the first
D and owned by the second D. At the time of
the accident the driver was, unbeknownst to
him, in a hypoglycaemic state whereby his
brain was starved of oxygen and unable to
function properly.
(6) PHYSICAL AND MENTAL
DISABILITY
 Held = Leggatt held that the standard of care
required of the driver was that which is to be
expected of a competent driver unaware
that he is suffering from a condition that
impairs his driving. To impose an objective
standard without taking his condition into
account is strict liability, which is not
acceptable in tort law. Aldous agreed, noting
that Tarleton did not and could not know of
his condition and how it would affect his
driving, thus his actions did not fall below
the standard of care.
(7) COMMON PRACTICE
 When looking at whether the D is in breach
of their duty the court may look to the
existence of a common practice within a
sphere for taking, or not taking, precaution
against an injury.
 They may also look at rules governing how
people in those spheres may act.
(7)(1) PROFESSIONAL
STANDARDS
 Bolam v Friern Hospital Management
Committee –
 Mr Bolam was a patient at a mental health
institution He agreed to undergo electro-
convulsive therapy. He was not given
any muscle relaxant, and his body was not
restrained. He flailed about violently, and he
suffered some serious injuries. He sued the
Committee for compensation. He argued they
were negligent for (1) not issuing relaxants (2)
not restraining him (3) not warning him about
the risks involved.
(7)(1) PROFESSIONAL
STANDARDS
 In this case it was held that a doctor is not
guilty of negligence if he has acted in
accordance with a practice accepted as
proper by a responsible body of medical men
skilled in that particular art, even if there is
another body with a contrary view.
 However this test was amended in Bolitho
(7)(1) PROFESSIONAL
STANDARDS
 Bolitho v City and Hackney Health Authority –
in this case it was held that any decision not
only had to have the support of a respected
medical body but also had to be logical basis.
Thus a judge will be entitled to choose
between two bodies of expert opinion and to
reject an opinion which is 'logically
indefensible'.