AQA - Law2 Examination revision

1. Breach of Duty By Kenisha Browning Kenisha Browning

2. The nature of breach – the reasonable man Once it has been established that a duty of care exists, the claimant must satisfy the court that the defendant broke that duty of care by failing to reach the standard of care required The standard of care is that of the ‘reasonable man’, which comes from the definition from Baron Alderson in Blyth 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

3. The nature of breach- the reasonable man The reasonable man is the ordinary Person performing the particular task: he is expected to perform it reasonable competently. Thus, when I am riding my bicycle, I am expected to be a reasonable competent cyclist. This is an objective standard; the peculiarities of the person performing the task are irrelevant. Kenisha Browning

4. 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

5. These differences can be put into various categories for ease of explanation and illustration. Commonly used questions to define 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

6. Are there any special characteristics of the defendant? The defendant is expected to be a reasonable competent person performing the task. This is straightforward when dealing with everyday people doing everyday tasks. In Wells V Cooper (1954), a man fitted a new door handle to the 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 wind blowing against the door. The claimant was leaving the house and pulled hard on the door to shut it. The handle came away in his hand and he fell down the steps and was injured. The court decided that a reasonably competent carpenter would have done the work to a similar standard as the man doing DIY on his house, so he has reached the standard of a reasonable competent person attaching a door handle. Kenisha Browning

7. Are there any special characteristics of the defendant? The position is much the same when dealing with a professional. When you go to hospital for an operation, you expect the same standard from your surgeon whether it is his first operation ever or not. The test here is whether his operating to the standard expected under a known and accepted procedure. This can be seen from the case of Bolam V Friern Barnet Hospital Management Committee (1957). Kenisha Browning

8. Bolam V Friern Barnet HospitalManagement Committee (1957). Bolam was suffering from mental illness and was advised by a consultant attached to the defendants’ hospital to undergo electro-convulsive therapy. This is a form of electric shock treatment. He signed a form of consent to the treatment but was not warned of the risk of breaking a bone whilst strapped down and being given electric shocks. On the second occasion when the treatment was given to him he suffered a broken bone. The hospital did not use relaxant drugs that would have prevented the risk of a broken bone. Among the medical experts, however, there were two bodies of opinion, one of which favoured the use of relaxant drugs as a general practice, and the other of which confined the use of relaxant drugs to cases where there were particular reasons for their use. These reasons were not present in Bolam’s case. The hospital had reached the standard practice expected and so had not broken their duty of care. Kenisha Browning

9. Finally, it should be noted that where a reasonable man cannot know that a standard procedure is in fact dangerous, he will not break the duty of care. This is because the reasonable man is not expected to know and protect against risks of harm that are not yet known scientifically. Once the risk is known, there can be a breach of duty, This is illustrated by the case of Roe V Minister of Health (1954) Are there any special characteristics of the defendant? Kenisha Browning

10. Roe V Minister of Health (1954) In that case, the claimant was injected with an anaesthetic contained in glass ampoules which were, prior to use, immersed in an antiseptic solution. The object of this was to keep the risk of infection to a minimum. Unfortunately, the claimant suffered a permanent paralysis from the waist downwards, as the anaesthetic had been contaminated by antiseptic which had seeped through invisible cracks in the ampoules. At the time the risk of this happening was not appreciated by competent anaesthetists in general, and such contamination had not happened before. Therefore the duty of care owed by the hospital had not been broke. Kenisha Browning

11. Are there any special characteristics of the claimant? The reasonable man takes more care where the situation demands it. This factor relates to risks known to the defendant as a result of peculiarities of the claimant. This is illustrated by the care Paris V Stepney Borough Council (1951). Here the claimant was employed as a fitter in a garage. His employer, he local council, knew he had the use of only one eye. While he was using a hammer to remove a bolt on a vehicle a chip of metal flew off and entered his good eye. This resulted in his becoming totally blind. The council did not provide goggles for him to wear, in 1950, it was not common practice for employers to supple goggles to men employed in garages on the maintenance and repair of vehicles. So had Mr Paris been fully sighted, the council might not have broken their duty of care. Because the council knew he was blind in one eye when they employed him, the court decided that the council owed him a higher standard of care because of this known, increased, risk. Kenisha Browning

12. Walker V Northumberland county council (1995) This principle applies equally to illness. In Walked V Northumberland County Council (1995) the claimant was a social services manager who had been forced, because of local authority funding shortages, to take on a far higher volume of work than he could cope with, He suffered several weeks of being unable to work because of a stress-related illness. This then became a special characteristic of Mr Walker known to the defendant. When he returned to work the local authority made little or no effort to improve his situation. The claimant then suffered another long period of illness. The court referred to the principle in Paris V Stepney Borough Council(1951) that the standard of care expected of an employer is raised if the employer knows that an employee is more likely to suffer injury. Thus the claimant was owed a higher standard of care that had been broken. Kenisha Browning

13. Are there any special characteristics of the claimant? Another example of this is that a higher standard of care is expected by organizers and sports coaches to disable athletes because of their special needs; this can be seen in the case of Morrell V Owen (1983). The facts of that case were that at a sports event for disabled athletes, archery and discus activities took place in the same hall, separated by a curtain, which billowed out from time to time when struck by a discus. The claimant was an archer, and was close to the curtain when a discus struck her head (through the curtain) and caused brain damage. Kenisha Browning

14. What is the size of the risk? The principle is that the greater the risk, the more care need be taken. To some extent this is an extension of the ides behind the previous factors. The reasonable man takes more precautions where the risk is greater, but does not take precautions against highly unlikely events. The classic case on this factor is Bolton v Stone (1951). Kenisha Browning

15. Bolton v Stone (1951). During a cricket match a batsman struck a ball which hit a person who was standing outside her house on the road outside the ground. The ball 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 and that to the place where the person was hit nearly 100 meters. The ground had been used as a cricket ground for about 90 years, and only on six occasions in the previous 30 years had a ball been hit out of the ground in that direction and no one had previously been injured. The court decided that the risk of injury to a person from a ball being hit out of the ground was so small that the probability of it happening would not be anticipated by a reasonable man. Therefore the cricket club had not broken its duty of care as it had reached the appropriate standard of care. The club had clearly thought about the risk and provided a reasonable solution. Kenisha Browning

16. Haley V London Electricity board (1964) A combination of this factor and a person with a disability can be seen in the case of Haley V London Electricity Board (1964). A blind man was walking along the pavement on his way to work. He was using his white stick to go along a route he knew very well. The electricity board had opened a trench and warned of it in the then conventional manner of laying a tool on the ground to force people to walk round it. The blind man did not notice the tool with his stick and fell over it into the trench. The court Decided that it was reasonably foreseeable that a blind person might be in the area as about one in 500 people is blind or Partially sighted. Thus the reasonable man would take precautions to prevent such an accident happening as it was a reasonable risk to protect against and not a fantastic possibility. Of course, today’s procedure for warning of such an obstacle protects against this risk. Kenisha Browning

17. Have all practical precautions been taken? It follows from the previous factor that a defendant will have acted reasonable if he has taken reasonable precautions. Thus the nets around the cricket ground in Bolton V Stone(1951) were a reasonable precaution, but the tool left on the ground was not in Haley V London Electricity Board(1964). The idea behind this factor is that the reasonable man will do all he reasonably can to prevent harm coming to others. In situations that are unexpected, this may not always prevent an accident, but the key is the reasonableness of the action taken. Kenisha Browning

18. Have all practical precautions been taken? In Latimer V AEC (1952) the defendant’s factory was flooded after an exceptionally heavy rainstorm. The water, mixed with some oil, made the floor very slippery. The defendant put up warning signs, passed the message round the workforce and used all their supply of sand and sawdust to try to dry the floor. Despite this, the claimant slipped and was injured. The defendant owed a duty of care to the employees, but had not broken the duty as the precautions taken to prevent an accident were sufficient in the circumstances as all reasonable practical precautions had been taken. Kenisha Browning

19. What are the benefits of taking the risk? This factor is sometimes called public utility. The idea is that there is a lower standard of care when reacting to an emergency. This is consistent with the idea of fair, just and reasonable in the third part of the test to establish a duty of care. The most famous example of this is Watt V Hertfordshire County Council (1954). This case concerns fire-fighters, who were injured by lifting gear when travelling in a vehicle not specifically fitter for carrying that gear. The vehicle that the fire-fighters should have used was adapted to carry the gear. However, that vehicle was already in use attending an emergency when the call came to go to another emergency where a woman was trapped under a heavy vehicle. Kenisha Browning

20. Watt V Hertfordshire County Council(1954) The court held that the firemen were ready to take the risk of using the vehicle to save life. The court must ‘balance the risk against the measures 'and the benefit of saving the woman was greater than the risk of injuring the fire fighters by using a vehicle not suited to carrying the heavy gear which moved and crushed a fire-fighter. Thus the duty of care owed by the council to its employee fire fighters had not been broken. Kenisha Browning

21. What are the benefits of taking the risk? The approach of the courts is very realistic when an emergency arises as the courts want to encourage rescuers on the one hand, but also want to make sure employers are not put off encouraging employees to effect a rescue by the threat of being sued in negligence because they had not taken all reasonable precautions. In another recent case, Day V High Performance Sports (2003), Ms Day, a reasonably experienced climber, fell while climbing on an climbing wall belonging to the defendant. Kenisha Browning

22. Day V High Performance Sports (2003) Unfortunately, she suffered a serious brain injury. At a height of 30 feet she had discovered she was not tied to her top rope and had had to be rescued by the duty manager because she was ‘frozen’ in her position. The court recognised that this was An emergency situation and that the circumstances of the emergency had to be taken into account. In fact the centre was one where a concern for safety was prominent and workshops on safety were given to employees. The court concluded that the climbing centre had not broken its duty of care and had reached the standard of care of a reasonable competent climbing centre. Kenisha Browning

23. Summary of cases Wells V Cooper (1954) – The standard of care required is of the reasonably competent person doing the job in question. Here a man doing DIY was expected to reach the standard of a reasonably competent professional doing the job. Bolam V Friern Barnet Hospital Management Committee(1957) – The standard of a professional is judged by the standard of the profession. In this case, following either of two accepted medical methods was said to be acceptable in reaching the standard of care excepted. Bolitho V City and Hackney Health Authority (1997)- When judging the standard of care required by professionals, the court can decide that the normal standard of acceptable conduct set by the profession is not high enough and the defendant has therefore broken his duty of care. Roe V Minister of Health(1954) – the reasonable man cannot take precautions against unknown risks. He will only break his duty by failing to take precautions when the risk becomes known. Kenisha Browning

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

25. Summary of cases Latimer V AEC (1952) – one factor in deciding whether the defendant has acted as a reasonable man is taking all practical precautions. After a flood, this was doing the best to mop up and warning the employees in the factory. Watt V Hertfordshire County Council (1954) – the benefits of saving a woman’s life outweighed the risk of injury to a fire-fighter when using the best, but still unsuitable vehicle in an emergency. Day V High Performance Sports( 2003) – The standard of care can be lower when making a rescue, in this case on a climbing wall. Kenisha Browning

26. 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. Kenisha Browning