Negligence : duty of care and breach of duty

Negligence : duty of care and breach of duty

• Did the defendant owe the claimant a duty to take care?
• Was the defendant in breach of that duty?

Duty of care – Finding a general test.

• The neighbour principle – Donoghue v Stevenson (1932). The House of Lords recognised a new relationship beteeen manufacturer and ultimate (The Narrow rule). It still survives, but has been superseded by the Consumer Protection Act 1987. Secondly, Lord Atkin in that case said a duty was owed to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…” He described such people as his neighbours, and hence the ‘Neighbour Principle’.

Finding a general test.

• A revised test – Lord Willberforce redefined the ‘neighbour principle’ in Anns v Merton London BC (1978), where it was turned into a 2 stage 1. Is there a sufficient relationship of proximity or neighbourhood suchthat in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant? If so, a prima facie duty of care arose. 2. Are there any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed? This test came under criticism – too expansive and was overruled.

Finding a general test.

• The current test : foresight, proximity and fairness – The claimant has to show 3 things: 1. It was reasonably foreseeable that a person in the claimant’s position would be 2. There was sufficient proximity between the parties. 3. It is fair, just and reasonable to impose liability. See the discussion of Bingham LJ in the case of Appeal in Caparo Industries v Dickman (1989).

Finding a general test

• An alternative test : assumption of responsibility – Has there been a voluntary assumption of responsibility by the defendant for the claimant? This test is used in cases of liability for omissions , for mis-statements and for economic loss.

Functions of the duty concept

• Is there a duty at the abstract level ( the notional duty or duty in law) e.g. Does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients?
• Is the particular claimant within the scope of the duty of care (duty in fact or the problem of the unforeseeable claimant) : e.g. Was this particular road user owed a duty by this particular motorist?

Duty at the abstract level

• What is the relationship between X and D? Does D have some responsibility over X?
• What is the relationship between C and D? Does it involve some obligation on D’s part to protect C against harm? See Home Office v Dorset Yacht Co (1970) – However, this duty must be distinguished from vicarious It concerns the primary liability of defendants for their own tort in failing to control others.

Duties of lawyers

• The House of Lords has now decided that in contemporary conditions there are no policy reasons sufficient to justify immunity from The old view that no duty was owed by lawyers in respect of work closely connected with the presentation of their case in court has therefore been abolished. See Arthur J.S. Hall v Simons (2002).

Duty of care to unborn children

• Congenital Disabilities (Civil Liability) Act 1976.
• Human Fertilisation and Embryology Act 1990.
• These Acts impose liability only where the baby suffers when it is born. They do not allow an action where the negligence caused the baby to be born, but did not cause the disabilities.
• These ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child. See the following cases – McFarlane v Tayside Health Board (2000); Parkinson v St. James and Seacroft University Hospital NHS Trust (2001); Rees v Darlington Memorial Hospital NHS Trust (2003).

Novel situations

•  Mulcahy v Ministry of Defence (1996) – liability of injuries to soldiers on active service.
• Vowles v Evans (2003) – liability of rugby referee to injured player.

Scope of the duty of care

• Even if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant eas within the scope of that See Bourhill v Young (1943); Goodwill v British Pregnancy Advisory Service (1996).

Breach of duty

• The basic rule – The defendant must conform to the standard of care expected of a reasonable person.
• ‘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 reasonable and prudent man would not ’ – Blythe v Birmingham Waterworks (1856).

Ordinary person in ordinary circumstances.

• Glasgow Corporation v Muir (1943) – This is one of the few cases in which the House of Lords has had to consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge)
• The test is an objective test – The abstract reasonable person is put into the shoes of the defendant, who is expected to have the same general knowledge and understanding of risks.
• It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation.

Defendant with special skills or qualifications

• Phillips v Whiteley (1938) – Did the defendant, who had pierced the claimant’s ears, have to show the care of a reasonable surgeon or of a reasonable jeweller?
• Shakoor v Situ (2000) – An interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England?
• Nettleship v Weston (1971) – In relation to car drivers, the only standard of care is that of a reasonable driver.

Medical negligence

• The defendant is to be compared with a reasonable person of the same specialism and status.
• Bolam v Friern Hospital Management Committee (1957) – The ‘Bolam test’, which allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable as explained in Bolitho v City and Hackney Health Authority (1998) see also Whitehouse v Jordon (1981); Maynard v West Midlands Regional Health Authority (1984) and Wilsher v Essex Area Health Authority (1987).

Medical Negligence

• The most controversial application of the Bolam test occurs where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed treatment. ( or possibly of the risks of not having the treatment)
• English law in principle applies the Bolam test and asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient. See Sidaway v Governors of Bethlem Royal Hospital (1985) and Rogers v Whitaker (1982).

Related Issues

• Children – Children may be liable in negligence and are judged by what might be expected of a reasonable child of the defendant’s See Mullins v Richards (1998)
• Defendant unable to perform competently – Illness may make a defendant not liable. See Mansfield v Weetabix Ltd (1998) – but the result would have been different, if the defendant had known of the medical condition.

Related issues Eliminating harm must be proportional to the danger -guidelines

• How likely was it that injury would occur?
• How serious was that injury likely to be if it did occur?
• How difficult and/or expensive would it be to eliminate the risk?
• How important or urgent was the action of the defendant?
• See Bolton v Stone (1951) (explained by Lord Reid in Wagon Mound (No 2) (1967); Latimer v AEC (1952); Paris v Stepney BC (1951); Watts v Hertfordshire (1954).

Are decisions on breach questions fact or law?

• The decision on the particular facts of a case does not constitute a binding The issue will have to be decided in the light of the particular facts each time it occurs. See Qualcast v Haynes (1959).

Proving breach of duty

• Very often the claimant may not be able to find out what happened. A parked car for instance, might have moved off without warning down the hill. All the claimant can do is show that such an incident does not happen, unless there is negligence. He can then make use of a rule of evidence called res ipsa loquitur (the facts speak for themselves)
• When is it legitimate to use the maxim?
• What is the effect of invoking it? See Scott v London & St Katherine’s Dock (1865); Henderson v Henry E. Jenkins (1970); Ng Chun Pui v Lee Chuen tat (1988)

 

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