Kenisha Browning

BREACH OF DUTY

By Kenisha Browning

Kenisha Browning

THE NATURE OF BREACH – THE REASONABLE MAN

Once it has been established that a duty of careexists, the claimant must satisfy the court that thedefendant broke that duty of care by failing toreach the standard of care required The standardof care is that of the ‘reasonable man’, whichcomes from the definition from Baron Alderson inBlyth V Birmingham Waterworks Co. (1856).

‘ 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’.

Kenisha Browning

THE NATURE OF BREACH- THE REASONABLE MANThe reasonable man is the

ordinaryPerson performing the particulartask: he is expected to perform itreasonable competently. Thus,when I am riding my bicycle, I amexpected to be a reasonablecompetent cyclist. This is anobjective standard; thepeculiarities of the personperforming the task are irrelevant.

Kenisha Browning

FACTORS AFFECTIVE THE STANDARD OF CARE OF THE REASONABLE MAN

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.

Kenisha Browning

These differences can be put into various categories for ease of explanation andillustration. Commonly used questions todefine the categories include:

Are there any special characteristics of the defendant?

Are there any special characteristics of the claimant?

What is the size of the risk?Have all practical precautions been taken?What are the benefits of taking the risk?

FACTORS AFFECTIVE THE STANDARD OF CARE OF THE REASONABLE MAN

Kenisha Browning

ARE THERE ANY SPECIAL CHARACTERISTICS OF THE DEFENDANT? The defendant is expected to be a reasonable competentperson performing the task. This is straightforward whendealing with everyday people doing everyday tasks. InWells V Cooper (1954), a man fitted a new door handle tothe outside of the back door of his house. The door was at the top of some steps. The door was difficult to close =on the day the accident happened as there was a high windblowing against the door. The claimant was leaving the houseand pulled hard on the door to shut it. The handle came awayin his hand and he fell down the steps and was injured. Thecourt decided that a reasonably competent carpenter wouldhave done the work to a similar standard as the man doing DIYon his house, so he has reached the standard of a reasonablecompetent person attaching a door handle.

Kenisha Browning

The position is much the same whendealing with a professional. When you goto hospital for an operation, you expectthe same standard from your surgeonwhether it is his first operation ever or not.The test here is whether his operating to

thestandard expected under a known andaccepted procedure. This can be seen fromthe case of Bolam V Friern Barnet HospitalManagement Committee (1957).

ARE THERE ANY SPECIAL CHARACTERISTICS OF THE DEFENDANT?

Kenisha Browning

BOLAM V FRIERN BARNET HOSPITALMANAGEMENT COMMITTEE (1957).

Bolam was suffering from mental illness and was advised by aconsultant attached to the defendants’ hospital to undergoelectro-convulsive therapy. This is a form of electric shocktreatment. He signed a form of consent to the treatment but wasnot warned of the risk of breaking a bone whilst strapped down andbeing given electric shocks. On the second occasion when thetreatment was given to him he suffered a broken bone. The hospitaldid not use relaxant drugs that would have prevented the risk of abroken bone. Among the medical experts, however, there were twobodies of opinion, one of which favoured the use of relaxant drugsas a general practice, and the other of which confined the use ofrelaxant drugs to cases where there were particular reasons for theiruse. These reasons were not present in Bolam’s case. The hospitalhad reached the standard practice expected and so had not brokentheir duty of care.

Kenisha Browning

Finally, it should be noted that where areasonable man cannot know that a

standardprocedure is in fact dangerous, he will notbreak the duty of care. This is because

thereasonable man is not expected to know

andprotect against risks of harm that are not

yetknown scientifically. Once the risk is

known,there can be a breach of duty, This isillustrated by the case of Roe V Minister ofHealth (1954)

ARE THERE ANY SPECIAL CHARACTERISTICS OF THE DEFENDANT?

Kenisha Browning

ROE V MINISTER OF HEALTH (1954)

In that case, the claimant was injected with ananaesthetic contained in glass ampoules whichwere, prior to use, immersed in an antisepticsolution. The object of this was to keep the risk ofinfection to a minimum. Unfortunately, theclaimant suffered a permanent paralysis from thewaist downwards, as the anaesthetic had beencontaminated by antiseptic which had seeped throughinvisible cracks in the ampoules. At the time the riskof this happening was not appreciated by competentanaesthetists in general, and such contamination hadnot happened before. Therefore the duty of care owedby the hospital had not been broke.

Kenisha Browning

ARE THERE ANY SPECIAL CHARACTERISTICS OF THE CLAIMANT?The reasonable man takes more care where the situation demandsit. This factor relates to risks known to the defendant as a result ofpeculiarities of the claimant. This is illustrated by the care Paris VStepney Borough Council (1951). Here the claimant was employedas a fitter in a garage. His employer, he local council, knew he hadthe use of only one eye. While he was using a hammer to remove abolt on a vehicle a chip of metal flew off and entered his good eye.This resulted in his becoming totally blind. The council did notprovide goggles for him to wear, in 1950, it was not commonpractice for employers to supple goggles to men employed ingarages on the maintenance and repair of vehicles. So had Mr Parisbeen fully sighted, the council might not have broken their duty ofcare. Because the council knew he was blind in one eye when theyemployed him, the court decided that the council owed him ahigher standard of care because of this known, increased, risk.

Kenisha Browning

WALKER V NORTHUMBERLAND COUNTY COUNCIL (1995)This principle applies equally to illness. In Walked VNorthumberland County Council (1995) the claimant was a socialservices manager who had been forced, because of localauthority funding shortages, to take on a far higher volume ofwork than he could cope with, He suffered several weeks ofbeing unable to work because of a stress-related illness. Thisthen became a special characteristic of Mr Walker known to thedefendant. When he returned to work the local authority madelittle or no effort to improve his situation. The claimant thensuffered another long period of illness. The court referred to theprinciple in Paris V Stepney Borough Council(1951) that thestandard of care expected of an employer is raised if theemployer knows that an employee is more likely to suffer injury.Thus the claimant was owed a higher standard of care that hadbeen broken.

Kenisha Browning

ARE THERE ANY SPECIAL CHARACTERISTICS OF THE CLAIMANT?

Another example of this is that a higher standard ofcare is expected by organizers and sports coaches todisable athletes because of their special needs; thiscan be seen in the case of Morrell V Owen (1983). Thefacts of that case were that at a sports event fordisabled athletes, archery and discus activities tookplace in the same hall, separated by a curtain, whichbillowed out from time to time when struck by adiscus. The claimant was an archer, and was close tothe curtain when a discus struck her head (through

thecurtain) and caused brain damage.

Kenisha Browning

WHAT IS THE SIZE OF THE RISK?The principle is that the greater the risk,

themore care need be taken. To some extent

this is an extension of the ides behind the

previousfactors. The reasonable man takes moreprecautions where the risk is greater, but

doesnot take precautions against highly

unlikelyevents. The classic case on this factor is

Boltonv Stone (1951).

Kenisha Browning

BOLTON V STONE (1951).During a cricket match a batsman struck a ball which hit a person whowas standing outside her house on the road outside the ground. Theball was hit out of the ground over a protective fence five metres high.The distance from the striker to the fence was about 70 metres andthat to the place where the person was hit nearly 100 meters. Theground had been used as a cricket ground for about 90 years, and onlyon six occasions in the previous 30 years had a ball been hit out of theground in that direction and no one had previously been injured. Thecourt decided that the risk of injury to a person from a ball being hitout of the ground was so small that the probability of it happeningwould not be anticipated by a reasonable man. Therefore the cricketclub had not broken its duty of care as it had reached the appropriatestandard of care. The club had clearly thought about the risk andprovided a reasonable solution.

Kenisha Browning

HALEY V LONDON ELECTRICITY BOARD (1964)A combination of this factor and a person with a disability can beseen in the case of Haley V London Electricity Board (1964). Ablind man was walking along the pavement on his way to work.He was using his white stick to go along a route he knew verywell. The electricity board had opened a trench and warned of itin the then conventional manner of laying a tool on the ground

toforce people to walk round it. The blind man did not notice thetool with his stick and fell over it into the trench. The courtDecided that it was reasonably foreseeable that a blind personmight be in the area as about one in 500 people is blind orPartially sighted. Thus the reasonable man would takeprecautions to prevent such an accident happening as it was areasonable risk to protect against and not a fantastic possibility.Of course, today’s procedure for warning of such an obstacleprotects against this risk.

Kenisha Browning

HAVE ALL PRACTICAL PRECAUTIONS BEEN TAKEN?It follows from the previous factor that adefendant will have acted reasonable if he hastaken reasonable precautions. Thus the netsaround the cricket ground in Bolton V Stone(1951)were a reasonable precaution, but the tool left onthe ground was not in Haley V London ElectricityBoard(1964). The idea behind this factor is thatthe reasonable man will do all he reasonably canto prevent harm coming to others. In situationsthat are unexpected, this may not always preventan accident, but the key is the reasonableness ofthe action taken.

Kenisha Browning

HAVE ALL PRACTICAL PRECAUTIONS BEEN TAKEN?In Latimer V AEC (1952) the defendant’s factorywas flooded after an exceptionally heavyrainstorm. The water, mixed with some oil, madethe floor very slippery. The defendant put upwarning signs, passed the message round theworkforce and used all their supply of sand andsawdust to try to dry the floor. Despite this, theclaimant slipped and was injured. The defendantowed a duty of care to the employees, but had notbroken the duty as the precautions taken toprevent an accident were sufficient in thecircumstances as all reasonable practicalprecautions had been taken.

Kenisha Browning

WHAT ARE THE BENEFITS OF TAKING THE RISK?

This factor is sometimes called public utility. Theidea is that there is a lower standard of care whenreacting to an emergency. This is consistent with theidea of fair, just and reasonable in the third part of thetest to establish a duty of care. The most famousexample of this is Watt V Hertfordshire County Council(1954). This case concerns fire-fighters, who wereinjured by lifting gear when travelling in a vehicle notspecifically fitter for carrying that gear. The vehiclethat the fire-fighters should have used was adapted tocarry the gear. However, that vehicle was already in useattending an emergency when the call came to go toanother emergency where a woman was trapped undera heavy vehicle.

Kenisha Browning

WATT V HERTFORDSHIRE COUNTY COUNCIL(1954)The court held that the firemen were

ready totake the risk of using the vehicle to save

life.The court must ‘balance the risk against

themeasures 'and the benefit of saving the

womanwas greater than the risk of injuring the

firefighters by using a vehicle not suited tocarrying the heavy gear which moved andcrushed a fire-fighter. Thus the duty of

careowed by the council to its employee firefighters had not been broken.

Kenisha Browning

WHAT ARE THE BENEFITS OF TAKING THE RISK?The approach of the courts is very realistic whenan emergency arises as the courts want toencourage rescuers on the one hand, but also

wantto make sure employers are not put offencouraging employees to effect a rescue by thethreat of being sued in negligence because theyhad not taken all reasonable precautions. Inanother recent case, Day V High PerformanceSports (2003), Ms Day, a reasonably experiencedclimber, fell while climbing on an climbing wallbelonging to the defendant.

Kenisha Browning

DAY V HIGH PERFORMANCE SPORTS (2003)Unfortunately, she suffered a serious brain injury.At a height of 30 feet she had discovered she wasnot tied to her top rope and had had to be rescuedby the duty manager because she was ‘frozen’ inher position. The court recognised that this wasAn emergency situation and that the circumstancesof the emergency had to be taken into account. Infact the centre was one where a concern for safetywas prominent and workshops on safety were givento employees. The court concluded that theclimbing centre had not broken its duty of careand had reached the standard of care of areasonable competent climbing centre.

Kenisha Browning

SUMMARY OF CASES Wells V Cooper (1954) – The standard of care required is of thereasonably competent person doing the job in question. Here a mandoing DIY was expected to reach the standard of a reasonably competentprofessional doing the job. Bolam V Friern Barnet Hospital Management Committee(1957) –

Thestandard of a professional is judged by the standard of the profession. Inthis case, following either of two accepted medical methods was said tobe acceptable in reaching the standard of care excepted. Bolitho V City and Hackney Health Authority (1997)- When judgingthe standard of care required by professionals, the court can decide thatthe normal standard of acceptable conduct set by the profession is nothigh enough and the defendant has therefore broken his duty of care. Roe V Minister of Health(1954) – the reasonable man cannot takeprecautions against unknown risks. He will only break his duty by failingto take precautions when the risk becomes known.

Kenisha Browning

SUMMARY OF CASES Paris V Stepney Borough Council (1951) – where a defendant knows of anincreased risk to the claimant, more care must be taken. The council knew heonly had one good eye so needed to do more than usual to protect the other. Walker V Northumberland Council (1995) – where an employee has alreadyhad time off work with an illness or injury, the employer must then take morecare to avoid a repeat or more serious illness. In this case it was stress- related. Bolton V Stone (1951) – the reasonable man takes precautions againstreasonable risks, not fantastic possibilities. The likelihood of a cricket ballclearing the protective fence at the ground and a passer-by was not a risk thereasonable man would protect against. Haley V London Electricity Board (1964) – a reasonable risk to protect againstis one that is statistically likely to occur, In this case, a blind pedestrian was notadequately warned of a trench across the pavement.

Kenisha Browning

SUMMARY OF CASES Latimer V AEC (1952) – one factor in decidingwhether the defendant has acted as a reasonableman is taking all practical precautions. After aflood, this was doing the best to mop up andwarning the employees in the factory. Watt V Hertfordshire County Council (1954) –the benefits of saving a woman’s life outweighedthe risk of injury to a fire-fighter when using thebest, but still unsuitable vehicle in an emergency. Day V High Performance Sports( 2003) – Thestandard of care can be lower when making arescue, in this case on a climbing wall.

Kenisha Browning

CONCLUSION

Breach of duty is concerned with the question

of whether the defendant had reached the

standard of care of a reasonable man. There

are a number of factors that are relevant to

this duty which raise or lower the standard

expected.