Breach of Duty

The duty of care is breached when an individual fails to take a reasonable amount of care. Not every injury will be caused without reasonable care. In medical situations for example, where an experimental procedure is being undertaken, the doctor is not necessarily negligent for causing injury as long as they did everything that was reasonable to avoid it. Reasonableness is not to be judged with hindsight.

Reasonableness

It is important to note that foreseeability and reasonableness are different concepts and thus a consequence can be foreseeable without it being unreasonable to run the risk of it materialising. In Bolton v Stone [1951] AC 850, the House of Lords held that even though injury by being struck by a cricket ball hit over the boundar fence was foreseeable, the likelihood of it happening was so slim that the Respondents behaved reasonably by ignoring it. In most cases, however, the fact that a consequence was foreseeable will make it unreasonable to run the risk, but it is always necessary to ask how the reasonable person would have dealt with the situation. If the costs of remedying a very remote risk are high, the reasonable man may simply have let the risk stand.

The gravity of the injury is also a relevant factor. In Paris v Stepney Borough Council [1951] AC 367, the House of Lords held that an employer was negligent in not providing a pair of goggles to a man with one eye in order to protect from flying sparks, which did in fact, blind him in his other eye. The fact that he only had one good eye meant that the injury, if it naterialised, would be much greater than if he had two good eyes, and thus the onus on the reasonable man to prevent the injury was greater.

The utility of the conduct is a relevant factor. If the Defendant acted in the way they did in order to save a life or assist someone, it may not be reasonable to suggest they broke the duty of care. Thus a negligent right hand turn which caused an accident was blameless as the driver was driving an ambulance in a time of emergency. The utility factor is probably the reason why some injuries in sports like rugby are not actionable (in cases when such injuries cannot be said to have been consented to).

Acting in a panic or with little time to react can also mean that the conduct was not negligent.

 

What is the standard that the duty holds you to?

The question of what is reasonable conduct is not a constant, but rather changes depending on the facts of each case. Where the tortfeasor is a driver the standard will be that of a reasonable driver, or a reasonable pilot and so on with other skills. Thus a junior doctor is held to the standard of a competent doctor though they can absolve themselves of responsibility by asking a competent doctor if what they have done is correct. The standard is to be judged objectively but arguably this can cause unfairness in cases where the Defendant suffered a particular idiosyncrasy or was disabled.

In Mansfield v Weetabix [1998] 1 WLR 1263, the Defendant drove his lorry into the front of a shop. Unbeknown to him, he was hyperglycaemic at the time, meaning that his brain was starved of oxygen and couldn't function. It was held that the defendant was reasonably unaware that he was driving in a disabled condition, had he been aware it would have been unreasonable to continue. In that case the standard that he was held to was of the hyperglycaemic driver who is unaware of their condition.

Similarly, the age of the defendant can be taken into account where it is of relevance: Mullin v Richards [1998] 1 WLR 1304, involved two 15 year old girls who were play fighting. The standard was of a reasonable 15 year old.

 

Professional Standards

It is clear that a professional will be held to the standard of the reasonable professional performing that particular task, but how is reasonableness to be judged in situations where there are different opinions within the profession as to the proper way of performance. Divergence of opinion is particularly common in medicine where aetiology and the best mode of treatment is not always clear. In Bolam v Friern Hospital Management [1957] 1 WLR 582 a Claimant underwent electrotherapy in which there was a 1 in 10,000 chance of a convulsion causing a fracture. The Claimant was not given relaxant drugs which would have prevented the fracture and the question was whether this was negligent. There was a division of opinion in the medical community as to whether a relaxant should be given. In finding for the defendant, the court stated that a professional could not be negligent as long as they acted in accordance with a body of competent medical opinion. McNair J stated,

" 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 opinion skilled in that particular art, even though a body of adverse opinion also exists amongst medical men "

It was not up to the judge to prefer a different opinion. This principle has been held to apply to all areas of medical law and cases involving professionals. It has lead to the accusation that the courts are excessively deferential to the opinions of professionals. Rather than simply make a finding that a body of the same opinion existed, the court should embark on an assessment of the reasonableness of the opinion.

 

Res Ipsa Loquitur

The final topic for consideration in respect of breach of duty is the res ipsa loquitur principle. The translation would be 'the thing speaks for itself'. The principle allows a claimant to recover even where there is no evidence of the defendant's breach of duty, not because the evidence found that the defendant was not negligent but because there was no evidence as to the cause of the injury at all. The injury, however, must be such that it could not have been caused (on a balance of probabilities) by anything other than negligence.

As an example, in Ng Chun Pui v Lee Chuen Tat [1988] RTR 298, the defendant bus driver in Hong Kong suddenly crossed the central reservation and into oncoming traffic, there were a number of injuries. The Claimants didn't call for oral evidence from the Defendant but instead relied on res ipsa loquitur. The Defendants argued that a car cut in front of the driver and he had to swerve. The Privy Council found for the defendants as the claimants had failed to answer the defence put forward. The court emphasised that the principle was not really a doctrine per se but rather simply a way of expressing a common sense idea: that the defendant probably caused the accident. The burden was on the claimant to prove a prima facie case which the defendant could then rebut.

Daborn v Bath Tramways Motor Co [1946] 2 ALL ER 333.

Wilsher v Essex Area Health Authority [1987] QB 730.