INTRODUCTION TO TORT

LAW (TRTL)
BREACH OF DUTY
 NEGLIGENCE

NO TOPIC
1. NEGLIGENCE: EQUATION OF ELEMENTS
2. THE SINGULAR COMPOSITE TEST
3. BREACH OF DUTY (2ND ELEMENT)
4. FACTORS:REASONABLE STANDARD OF CARE
5. FACTORS:PROFESSIONALS/ SKILLS
6. FACTORS: OTHER TYPES OF DEFENDANTS
 NEGLIGENCE
MUST prove three (3) elements:

Duty of care + Breach of duty + Causation of damage

[In fact + In law (remoteness of damage)]

=
NEGLIGENCE
 THE SINGULAR COMPOSITE TEST
CAPARO TEST
1. Is there a valid
precedent ?

YES: NO:
Duty of care (2) NOVEL/ NEW (i) Is Damage
established situations foreseeable?

YES NO
YES (ii)Proximity? X duty of care
(iii) Fair, just &
reasonable?
NO
X duty of care
YES NO
Duty of Care X duty of care
 THE SINGULAR COMPOSITE TEST TEST
Reasonable Foreseeability: Proximity: Fair, Just and Reasonable:
Can the defendant foresee that his actions Close relationship between the Discussion of policy
will cause harm? defendant’s action & claimant at
time of injury
1.Langley V Day 1. Bourhill V Young Macfarlane V Tayside Health
Body
Held: Held:
• Defendant was liable as it was reasonably • The defendant did not owe a duty Held:
foreseeable that increasing speed might of care.
result in an accident to the Claimant. • X reasonably foreseeable that C The claim was denied on the
might suffer from nervous shock basis that it was X just and
• The Claimant was X sufficiently reasonable to compensate for
proximate to the scene of the the birth of a healthy child
crash

2. Palsgraf V Long Island Railway 2. Watson V British Boxing Board

Held : Held:
• Defendant was not liable as no indication that • Sufficient proximity between the
the content of the box was fireworks and the Claimant and the Defendant.
dropping of the box would cause explosion. • The defendant was the only body
• The claimant was standing a few feet away in UK which could license
and no violation of her personal rights. professional boxing matches.
 THE SINGULAR COMPOSITE TEST TEST
Reasonable Foreseeability: Proximity Fair, Just and Reasonable
Can the defendant foresee that his
actions will cause harm?
3. Haley V London Electricity Board
Held :
• The defendant breached the duty of
care in ensuring the safety of all
persons who use the walkway
including the blind man.
• The harm was reasonably
foreseeable.
 NEGLIGENCE
MUST prove three (3) elements:

Duty of care + Breach of duty + Causation of damage

[In fact + In law (remoteness of damage)]

=
NEGLIGENCE
 BREACH OF DUTY:2ND ELEMENT
BREACH OF DUTY 1.STANDARD OF A REASONABLE
• What is the standard expected from D MAN (ordinary acts : non –skilled
(set by the law)? acts)
• Did D come up to the standard (on what • Blyth V Birmingham
capacity eg professional skills, • Hall V Brookland
sportsman)? ; or
• Did D fall below standard?
(i)SKILLED/ PROFESSIONALS
• Bolam V Friern Hospital Mgmt (1957)
• Bolitho V City Hackney Authority
STANDARD OF CARE (1997)
• Objective test
• A person’s conduct
is tested against the (ii).CHILDREN
standard of care • Mullin V Richards (1998)
which could be
expected of a 2. SPECIAL
reasonable person STANDARD OF
• Same general CARE
• SPORTMANS
knowledge, 3. DIFFERENT • SPORTING AUTHORITY
appreciation of risks CLASSES OF • SPORTING OFFICIALS
& foresight DEFENDANTS
 BREACH OF DUTY:2ND ELEMENT
1. STANDARD OF A REASONABLE
STANDARD OF CARE MAN
• Objective test • Blyth V Birmingham
• A person’s conduct • Hall V Brookland (reasonable man,
is tested against the ordinary man, man on the Clapham
standard of care bus)
which could be (i) SKILLED/ PROFESSIONALS
expected of a • Bolam V Friern Hospital Mgmt (1957)
reasonable person • Bolitho V City Hackney Authority (1997)
(ii) CHILDREN
• Mullin V Richards
2. SPECIAL
(iii) SPORTSMAN, SPORTING
STANDARD OF
AUTHORITY & OFFICIALS
CARE
3. OTHER CONSIDERATIONS:
• Greater Risk of harm
• Risk of greater harm
• Practicality of Precautions
• Utility of the Defendant’s Conduct
• State of knowledge/ Foreseeability of
Risk
• Common Practice.
 DETERMINING FACTORS FOR REASONABLE STANDARD OF CARE

Greater Risk of Risk of Greater Practicality of Precautions

Harm/likehood of Harm/Seriousness of
harm harm
1.Miller V Jackson 1. Paris V Stepney 1. Latimer V AEC Ltd

2. Bolton V Stone 2. Wilson v Governors of Sacred

Heart Roman Catholic Primary
School
 DETERMINING FACTORS FOR REASONABLE
STANDARD OF CARE
Utility of Defendant’s State of knowledge/ Common Practice
Conduct Foreseeabilty of Risk
1.Watt V Hertfordshire CC 1.Roe V Minister of Health 1. Brown V Rolls Royce Ltd
 DETERMINING FACTORS FOR REASONABLE STANDARD OF CARE
Greater Risk of Harm/ like hood of harm/ Risk of Greater Harm Practicality of Precautions
Magnitude of risk /Seriousness of harm/ Special • How practical are these
• The greater the risk that harm would be characteristics of the claimant precautions?
inflicted, the greater the precautions the
defendant is required to take
1.Miller V Jackson (1977) 1. Paris V Stepney (1951) 1. Latimer V AEC Ltd (1953)
Held: Held: Held:
• The club was expected to take precautions as • Based on the facts, the risk was • The precautions taken were sufficient.
the ball hit out of the ground several times small but the potential consequences • The risk of injury by the slippery floor
every season. to the employee was extremely was not sufficiently high that it would
• The club was guilty of both negligence and serious as he could end up in total require the occupiers to shut down the
nuisance. blindness. factory
• The employer should have provided
goggles to the claimant (sight in one
eye) because the seriousness of
harm to him would have been greater
than that experienced by workers
with sight in both eyes
2. Bolton V Stone (1951) 2. Wilson v Governors of Sacred Heart
Roman Catholic Primary School
Held: (1957)
• The club was not negligent as the like hood of A 9-year-old boy was injured at the
the ball hit out of ground and injured the end of the school day when his
plaintiff was small.
• The defendant could not be expected taken eye was hit by another pupil
the precautions. deliberately whirling a coat
around like a lasso. Both children
 DETERMINING FACTORS FOR REASONABLE STANDARD OF CARE
Utility of Defendant’s Conduct State of knowledge/ Foreseeabilty of Risk Common Practice
• Does society benefit more from • What did the Defendant know? • What do other people within the
allowing this action than • D X liable if X knowledge of risk taking same industry do?
disallowing it? place • A defendant complying with a
common practice in his area of
activity will usually be
considered to have met the
standard of a reasonable man.
1.Watt V Hertfordshire CC (1954) 1.Roe V Minister of Health (1954) (state of the 1. Brown V Rolls Royce Ltd
art defence – 1947 knowledge) (1960)
Held:
• X breach of duty. Held: Held:
• The emergency of the situation and • anaesthetist X negligent not to possess this
utility of the respondent's conduct knowledge at the material time. • The employers were not negligent
in saving a life outweighed the • the anaesthetist did not know at the time of the in not providing the barrier cream
need to take precautions. operation that such cracks might exist and did because it could not be shown in
not therefore guard against such dangers. the case that using the cream was
• the defendant will only be liable if the guaranteed to prevent the
reasonable person would have foreseen the condition.
loss or damage in the circumstances prevailing
at the time of the alleged breach of duty.
 STANDARD OF CARE: SKILLED/ PROFESSIONALS (MORE THAN AVERAGE
SKILLS & ABILITIES – REASONABLE PROFESSIONAL WITH SAME SKILLS)
Bolam v Friern Barnet Hospital Management Maynard V West Midlands Health Sidaway V Board of Governors
Committee (1957) Authority (1984) of Bethlem Royal Hospital
(1985)
Facts: Facts: Facts:
• Doctor did not give any relaxant drugs to treat • Procedure resulted in damage to the • The claimant was not informed
his mental illness and the claimant suffered a claimant’s vocal chord resulting in paralysis of the outcome/ the risk of
serious fracture. Failure to disclose the risks. of the left chord. developing paraplegia after
undergoing a spinal injury.
• < than 1 % risk
Held:
• The House of Lords held that the doctor was Held: Held:
not in breach of duty.
• House of Lords formulated • Doctor’s clinical judgement was X negligent. • The surgeon was X negligent in
the Bolam Test: "a medical professional is not • Supported by competent but minority view. failing to disclose the minor risk
guilty of negligence if he has acted in (<1%) of the spinal damage.
accordance with a practice accepted as proper • Additional test to the Bolam
by a responsible body of medical men skilled in test ie the 1% risk.
that particular art . . .“
• Test: Standard of the ordinary skilled man
exercising and professing to have that special
skills.
• A competent body of professional opinion
• Much criticism- allows doctors to set their own
standard
 STANDARD OF CARE: SKILLED/ PROFESSIONALS (MORE THAN
AVERAGE SKILLS & ABILITIES – REASONABLE PROFESSIONAL)
Wilsher V Essex Area Health Bolitho V City Hackney Health Chester V Afshar (2004) Montgomery V
Authority (1988) Authority (1997) Lanarkshire Health
Board (2015)
Facts: Facts: Facts: Facts:
The defendant junior doctor The mother sued the doctor claiming that The neurosurgeon failed to inform the The failure of defendant to
oversupplied oxygen to the premature the son should have been intubated claimant of the 1%-2% risk of spinal inform the claimant of the risk
born baby. damage despite her queries. and on other birth alternatives.
Held:
Held: Held: Held:
• An inexperienced does X owe a • Lord Browne – Wilkinson: Bolam test • The doctor was in breach of duty to • If there was a significant
lower standard of care- same was a correct test to apply. disclose the risk despite her risk that could affect the
standard as experienced doctors. • The court was X obliged to hold the consenting to the surgery. decision made by a
• Inexperience may be used as a doctor X liable for negligence simply • Informed consent is not a defence reasonable patient about
defence to an action of because some medical experts had in medical negligence cases where their options then it would
professional negligence. testified the doctor’s action was in line consent was obtained without full be expected that a doctor
• Satisfied the necessary standard with accepted practice. disclosure of the risk, would inform a patient of
of care if had sought the advice • the extra requirement of medical that risk
and help of his superior, exercised experts were reasonable , in that they • 'The test of materiality is
the a specialist skill and made a weigh all the risks and benefits and had whether, in the
mistake. a logical basis for conclusion. circumstances of the
• on the balance of probabilities • Bolam sets out that a doctor is not particular case, a
there were four other alternatives negligent if they have acted in reasonable person in the
which would explain the blindness accordance with a responsible body patient's position would be
as held by the House of Lords. of opinion. Bolitho stated that the likely to attach significance
court must be satisfied that the body of to the risk, or the doctor is
opinion relied upon has a logical or should reasonably be
basis. aware that the particular
patient would be likely to
attach significance to it.
SPECIAL CATEGORIES OF DEFENDANTS: CHILDREN (ORDINARILY CAREFUL &
REASONABLE CHILD OF THE SAME AGE

Mullins V Richards (1988) Keown V Coventry Healthcare NHS Trust (2006)

Facts:15 year old school girls were playing with plastic rulers Facts:
during a lesson. Injured claimant’s eye and causing loss of • 11 year old child climbing an external fire escape at the defendant’s
eyesight when the ruler snapped. hospital trust.
• Fell, fractured his arm and suffered brain injury.
Held: • The trial judge held that there was a danger caused by the state of the
• The correct test: whether an ordinarily careful and premises in accordance with the Occupiers’ Liability Act 1984, section
reasonable 15 year old would have foreseen the injury. 1.
• X in breach :a child is only to be held to the standard of a • the claimant was two-thirds responsible.
reasonable child of the same age, and not to the standard • Appealed the decision
of a reasonable adult.
• The practice was common and the injury was not
foreseeable. Held:

• The judge found that the claimant understood the risk or the fact that
what he was doing was dangerous.
•  If a person opted to climb the external fire escape improperly, thus
creating the danger themselves, the health trust could not be liable.
SPECIAL CATEGORIES OF DEFENDANTS: CHILDREN (ORDINARILY CAREFUL &
REASONABLE CHILD OF THE SAME AGE)

Mullins V Richards (1988) Keown V Coventry Healthcare NHS Orchard V Lee (2009)
Trust (2006)

Facts: Facts: Facts:

• 15 year old school girls were • 11 year old child climbing an external fire • School dinner lady ie a supervisor sued a
playing with plastic rulers during a escape at the defendant’s hospital trust. 13 year old boy for injury caused by him
lesson. Injured claimant’s eye and • Fell, fractured his arm and suffered brain when he ran an backwards into her while
causing loss of eyesight when the injury. playing a game of tag.
ruler snapped. • The trial judge held that there was a
danger caused by the state of the premises Held:
Held: in accordance with the Occupiers’ Liability • The boy had not breached his duty of care,
• The correct test: whether an Act 1984, section 1. and so was not liable, as held by the Court
ordinarily careful and reasonable • the claimant was two-thirds responsible. of Appeal.
15 year old would have foreseen • Appealed the decision (healthcare • to establish a breach, the claimant must
the injury. appealed) establish that the defendant failed to act as
• X in breach :a child is only to be a reasonable person would in their position,
held to the standard of a although it was not disputed that the boy
reasonable child of the same age, Held: owed the supervisor a duty of care.
and not to the standard of a
reasonable adult. • The judge found that the claimant
• The practice was common and the understood the risk or the fact that what he
injury was not foreseeable. was doing was dangerous.
•  If a person opted to climb the external fire
escape improperly, thus creating the danger
themselves, the health trust could not be
liable.
SPECIAL CATEGORIES OF DEFENDANTS: SPORTSMAN [A HIGHER DEGREE
IS EXPECTED FROM A PROFESSIONAL (MORE KNOWLEDGEABLE) THAN
AN AMATEUR]
Wooldridge V Sumner (1963) Condon V Basi (1988) Watson V British Boxing Vowles V Evans
Authority (2000) – sporting (2003)
authority
Facts: Facts: Held: Held:
• The photographer claimant sued the • BBC was liable for its failure to
defendant in the tort of negligence when • The Claimant suffered a broken provide ringside medical The referee was held liable
one of the horses, at the horse show leg after a challenge from the facilities in relation to for negligently allowing a
galloped towards him at a significant defendant during a football immediate resuscitation. lack training and
speed after the rider lost control of it, match. experience substitute
knocking him down. Held: player to stand in the front
• Defendant may avoid liaility if raised • The Defendant was in breach of row, thus resulting injury to
defence of volenti non fit injuria. duty as the tackle was the player.
considered reckless.
Held: • It was held that the standard of
• Defendant X liable as held by the High care varies according to the level
Court. of expertise of the player
• Spectators can be taken to know of and • A professional is more
consent to the risk of the sportsman knowledgeable of the risk and
making errors of judgement or skill, consequences with the sport.
given the fast-paced nature of the • A sportsman could be held liable
activity if he has been reckless with
• Unless the sportsman was acting with regards to the safety of another.
deliberate or reckless disregard for the
spectator’s safety.
DEFENDANTS EXERCISING SKILLS: JUDGED AGAINST A REASONABLE
COMPETENT IN THAT SKILL

Wells V Cooper - carpenter (1958) Phillips V Whiteley – jeweller

Facts: Facts:
• Mr. Cooper, defendant fixed his own door handle. • the plaintiff arranged for her ears to be pierced by a jeweller and
• Injured Mr Wells, the plaintiff who was trying to open as a result infected her ears.
the door. Held:
Held: • held that the jeweller was not liable as they had never claimed to
• degree of care and skill required of a householder reach the standard of a surgeon.
undertaking his own repairs was to be measured not
by reference to his own degree of personal
competence.
• by reference to the degree of care and skill which a
reasonably skilled amateur carpenter might be
expected to apply to the work in question.
• Mr Cooper satisfied the standard of a reasonably
skilled amateur carpenter.
 THE STANDARD OBJECTIVE TEST
Glasgow Corporation V Nettleship V Weston Robert V Mansfield V
Muir (1943) (1971) Ramsbottom (1980) Weetabix (1998)
Facts: Facts: Facts: Facts:

Held: Held: Held:

Held:
THE END