Breach of Duty Negligence part 2

Recap
Last week we looked at the three main element required to
establish negligence
Duty of care owed

Breach of duty

Causation and injury

This week we shall concentrate on breach of duty

 Breach of duty aims
Established what amounts to breach of duty

Look at case examples

Get a rounded understanding of how breach of duty

operates in tort of negligence
Breach of duty

After proving that a duty of care is owed the next logical step to take is that
of establishing if there has been a breach of that duty

The standard of care that has to be applied is that is the reasonable man

Which is an objective test

It eliminates those who we consider too careful

This test has been adopted in Zambia as mentioned in Daka v Attorney

General (1990-1992)
The reasonable man test

Glasgow Corporation v Muir [1943]

Member of a church picnic were having tea in the park but due to bad weather had to move indoors and
with permission of the appellant they used a room belong to them. Here they could consume their tea
whilst the tea urn was ring moved in the passage it was dropped by one of the carries

The tea escaped, scalding 6 children

It was argued that the mangeress should have foreseen the risk that the tea would be spilt

Held that she was not liable

 Reasonable man test
The degree of care required when taking others into consideration varies from
situation to situation when one is conducting their affairs and it vairies
according to the risk involved as well

Liability is limited to those consequences of our act which a reasonable man of

ordinary intelligence and experience so acting would have in contemplation

The duty is to avoid doing or omitting to do anything the doing or omitting to do

which may have as its reasonable and probable consequence injury to others
and the duty is owed to those to whom injury may reasonably and probably be
anticipated if the duty is not observed
See Bourhill v Young
 Reasonable man test
The reasonable man is presumed to be free both from over
apprehension and from over confidence
Although there is a sense in which the standard of care of the
reasonable man involves in it application a subjective element
Bolton v Stone [1951]

The claimant in this scenario was hit by a cricket ball which was
struck out from the cricket ground which was surrounded by a
fence 17 feet high
The fence was some 75 yards from the striker and hit the
claimant a 100 yards away only six balls had ever been struck
over the fence in 28 years
 Reasonable man test
Court held that the club was not negligent

The test here is whether the risk of the damage to the person on the road
was so small that a reasonable man in the position of the appellant
considering the matter from the point of view of safety would have thought
it right to refrain from taking steps to prevent the danger

In that light it would be right not only to take that into consideration but
also how serious the consequences could be
Safety level we are entitled to expect
Wells vs Cooper [1958]

Claimant was delivering fish at the defendant house he tired to open the door but the handle came off and he
lost his balance and feel

The handle had been replaced by the owner who was an amateur carpenter

He had used three quarter inches nails in doing so

Court held he was not liable

Standard of care and skill to be demanded in order to discharge his duty of care to the plaintiff is that of a
reasonably skilled carpenter this does not not mean the degree of care and skill will be measured by reference
to contractual obligations as obligation to quality
Standard of care

Roberts vs Ramsbottom [1980]

A driver who suffers a stroke even though he is unaware of the

condition and loses control as a result is still liable

Mansfield v Weetabix ltd [1998] changed this and stated the

Roberts was wrong on this point and that a driver will not be held
liable should be become unable to control a vehicle once a
debilitating condition manifests itself
Factors relevant to standard of care

Foreseeability of harm

Magnitude of the risk

Burden of taking precautions

Utility of the defendant's conduct

Common practice
 Foreseeability of harm
If the particular harm suffered by the claimant is not foreseeable then the defendant
will not be liable

Obvious as the reasonable man cannot be expected to take any precautions against
unforeseeable risk
Roe v Minister of Health [1954] plaintiff went to hospital for a minor operation but
suffered permanent paralysis as a result of being given a spinal anaesthetic which was
contaminated with phenol
Contamination occurred when the vile containing the anaesthetic was stored in phenol
which in turn sipped into the vile through tiny invisible cracks

At the time it was not know that contamination could occur this way

Trial came in 1954 by which time the dangers had been known
 Forseeablility of harm
Defendants were held not be liable

Denning said although in 1954 it would considers negligent if it

occurred you had to look at it in 1947

While a defendant will escape liability where risk is unforeseeable it

does not followe that he or she will be automatically be liable for all risk
that are foreseeable

Risk must be reasonably foreseeable

Magnitude of Risk

Reasonable Need to consider

person does not two factors when
1) the likelihood
take precaution assessing
of harm
against risk that magnitude of
is too small risk

2) the 1)Bolton vs
seriousness of Stone 1951 Cricket case
the
consequences
 Magnitude of Risk
The chances of injury in these circumstances where very slight that the defendant
where not negligent in continuing to play cricket

Ordinarily careful man does not take precautions against every foreseeable risk it
would be impossible to do so for every foreseeable risk Lord Oaksey

Hilder v Associated Portland Cement manufacturers ltd 1961

Defendant was occupier of grass field allowed some boys to play football there one of
the boys kick the ball over a low fence which hit a motorcycle rider on the other side
who in turn suffered fatal injuries

Defendant were held liable

 Magnitude of risk
 Because the risk of injury to a road user was much greater than the
risk in Bolton it was not a risk a reasonable person would have
disregard
 Road was only 15 yards away
 2) seriousness of the consequences
 Risk of harm must be weighed against other factors including the
seriousness of the consequences if its harm does materialise the
more serious the consequences the greater the obligation
Magnitude of Riak

Paris v Stepney Borough Council [1951]

The plaintiff was Blind in one eye and only had one good eye he was employed at the
defendants garage and one day was called on to dismantle a chassis of a large vehicle and
had to use a hammer to get a rusty bolt

A fragment of the rust bolt came of hit him in the eye and he was completely Blind

The risk was extremely small and did not justify use of googles

Court held the defendant liable failing to provide Google to the particular worker knowing
that he might suffer such serious consequences if the small risk materialised
Burden of taking precautions

 Court will take into account cost and practicality of taking precautions
against a risk
 If the burden is great to eliminate the risk than the be nefit the normally it
will not amount to negligence
 See Bolton.
 Latimer v AEC Ltd [1953]
 Floor of the defendant’s factory was flooded and as a result some oil
leaked and mixed with the water
 The water subsided but the floor remained slippery
 Sawdust was used to prevent the floor being slippery but they did not
have enough
 Later a worker was in a particular patch that was still slippery he fell broke
his ankle and sue
Burden of precaution

They had done

everything
House of lord
possible to
held that they ne
negate risks
not negligent
without having to
close the factory.
Utility of defendants conduct

The great the social utility of the defendants conduct the less
likey that they will held negligent

Darbon v Bath tramways motor co ltd [1946] the relevant

issue was whether in war time the driver of a left handed
drive ambulance had be negligent in turning into a road
without giving a hand signal

Held not to be liable in wartime its necessary