Tort 7. Negligence - Breach Of Duty Of Care

1. Objective test
   
2. Standard of reasonableness
   

• Gravity of potential harm
• Magnitude of the risk
• Practicalities/cost of protecting against the risk
• Social utility
• Special situations (special characteristics of the defendant)
  

FACTS Some children entered a tearoom One of the children, the claimant, was scalded by the upturning of an urn of tea. Tearoom owner not liable. Although the owner had a duty of care towards patrons, it was not foreseeable that a child entering the tearoom would be scalded There could have been, nor should have been, any further precautions taken to protect against such an incident.Bolton v Stone [1951]
Lord Macmillan:‘Thestandard of foresight of the reasonable man is, in one sense, an impersonaltest. It eliminates the personal equation andis independent of the idiosyncrasiesof the particular personwhose conduct is in question. Some persons are by nature unduly timorous andimagine every path beset with lions. Others, of more robust temperament, failto foresee or nonchalantly disregard even the most obvious dangers. Thereasonable man is presumed to be free both from over-apprehension and fromover-confidence, but there is a sense in which the standard of care of thereasonable man involves in its application a subjective element. It is stillleft to the judge to decide what, in the circumstances of the particular case,the reasonable man would have had in contemplation, and what, accordingly, theparty sought to be made liable ought to have foreseen.’

Held: Even learner drivers are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. Lord Denning applied policy considerations in deciding this case because, he said, the injured person can recover damages from the insurance policy; however the insured party must be at fault first. policyconsiderations for maintaining an objective standard of care that expects thesame of a learner or inexperienced person as it does of an experienced person…courtseemingly demanding perfection…no common sense here unless as seen through apolicy lens…due to magnitude of the risk, higher level of care becomesnecessary/required…incompetent best is not enough

C won damages subject to a deduction for contributory negligence.

B = Burden of taking precautions toeliminate the risk

P = Probability of injury

L = Extent of likely loss

Held: the risk was so slight and the expense of reducing it so great that a reasonable cricket club would not have taken any further precautions. C lost.

Morris LJ: “The law expects a man a great deal more care in carrying a pound of dynamite than a pound of butter.”

Held, on appeal, the container had either been left with an escape of gas, or it had been left in such a condition that on its being moved without any negligence, and moved in a way that the second defendants' employees must have known to be likely, it would become and be in a condition resulting in an escape of gas; on that basis there was liability on the part of the second defendants.

Held: The probability of such an event was very small, but its consequences were very serious, his employers, knowing of his disability, should have taken extra care to provide goggles for him. The more serious the possible damage, the greater the precautions that should be taken. C won

Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, the judge refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space. Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance...notable that negligence was caused every time a ball left the grounds not because cricket was being played on the grounds.

Lord Porter states that their duty is to determine what action a reasonable person would have taken in the circumstances given the circumstances that no one else slipped or even acknowledged that there was a reasonable risk of doing so. Even the safety engineer did not state that any more steps than were taken should have been performed. In order to succeed, Latimer would need to prove that a reasonable employer would have shut the factory down because the risks involved in working were too high – and he did not succeed in proving this.

A defendant does not have to totally eliminate the risk but must do as much as the reasonable person would do in the circumstances.

Held: Denning, LJ:" ... in measuring due care one must balance the risk against the measures necessary to eliminate the risk. [...] The saving of life or limb justifies taking considerable risk ...". C lost

House of Lords held: The Council were not liable.No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984. The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s.1(3)(C). In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner. To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation. He noted that 25-30 such fractures occurred each year nationwide, despite increased safety measures the numbers had remained constant.

FACTS Child was injured playing a game at scouts. Game involved light being switched off and children running around in the dark. Injury happened in the dark.

HELD Appeal dismissed. (1) The risks associated with playing the same game in a lighted room were increased when the lights were switched off. It could not be said that B would have suffered the same accident if there had been full illumination. Everyone accepted that scouting activities were valuable to society and that they often, and properly, carried some elements of risk. However, that did not render every scouting activity, however risky, acceptable. In the instant case, the judge rightly concluded that playing in the dark significantly increased those risks and that the only justification was the additional excitement. Darkness added no other social or educative value.

a)prevent a desirable activity from being undertaken at all, to a particularextent or in a particular way, or

b)discourage persons from undertaking functions in connection with a desirableactivity.

Held: The neither teacher nor D had been negligent. There was insufficient evidence that the accident had been foreseeable in what had been no more than a childish game. C lost

Held: Only recklessness or a very high degree of carelessness is sufficient to breach the duty of care owed during horseplay. There is a close analogy between organised sport and horseplay. The absence of formal rules in horseplay is not sufficient distinction, both are consensual, involve physical contact, decision are made quickly or instinctively. C had consented to the risk. C lost

FACTS L was 13 years old. He was playing tag in the courtyard and part of a walkway that was the designated social area at his school. While he was running backwards he collided with O, who was the lunchtime supervisor, causing her serious injuries. There was no rule against running in the area where the incident occurred. The court held that the incident was a simple accident caused by horseplay. It stated that no ordinarily prudent and reasonable 13-year-old boy would reasonably have foreseen the risk of injury by virtue of the game of tag in question.

HELD Appeal dismissed. L's conduct was simply the conduct to be expected of a 13-year-old boy playing tag. No part of his conduct was outside the norm, let alone a significant degree outside it, nor was he breaking any rules. Therefore, his conduct could not be described as being careless to a very high degree, and it was clear that he was not culpable

Held: The standard of care that driver was obliged to show was that which is expected of a reasonably competent driver. The driver did not know and could not reasonably have known of his illness that was the cause of the accident. Therefore, he was not at fault. His actions did not fall below the standard of care required. C lost

Leggatt LJ "In my judgment the standard of care that Mr Tarleton was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of Mr Tarleton’s condition would be to impose strict liability. But that is not the law."

Held: There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk. As a spectator, Wooldridge accepted the risks involved in a horserace he came to watch. As a reasonable participant in the race, which is a fast and competitive sport, the horseman was expected to concentrate on the race and not on the spectator. In the course of a fast moving competition such as this one, he could be expected to make errors of judgment. As long as the damage was not caused recklessly or deliberately, the participant in a race could not be held liable for the spectators injuries because he was not negligent, i.e. not in breach of his duty.

Diplock LJ: "The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran"

Held: The standard of care varies according to the level of expertise the player has. The Defendant was in breach of duty as the tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury which occurs outside the rules of the game.

Sir John Donaldson MR: The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match.

Held: A referee and player have sufficient proximity, it was foreseeable that if the referee did not enforce the rules there would be injury (that is what the rules are there to prevent). It was just, fair and reasonable to impose a duty of care. There was a structured relationship, the referees acts or omissions were manifestly capable of causing physical harm to others, and in such circumstances the law will normally impose a duty of care.A referee of a game of rugby football owes a duty of care to the players. The court did not consider it logical to draw a distinction between amateur and professional rugby.The referee had breached that duty of care, the referee had been in a position no more than basic skill and competence at that level of the game (see Bolam).

Lord Phillips MR: “Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered. Mr Leighton Williams has failed to persuade us that there are good reasons for treating rugby football as an exceptional case. A referee of a game of rugby football owes a duty of care to the players.”

[Comment] This is the first case involving an amateur game. The court applied Caparo Plc. v Dickman [1990] HL and a line of cases where the sport's governing body has been held responsible for the safety of the players or participants. For example, the brain damage suffered by the boxer Michael Watson and his claim for negligence against the British Board of Boxing Control had forced the governing body into bankruptcy. C won

FACTS C, a jockey, appealed against the dismissal of his claim for personal injuries which he had instituted after being injured in a race during which the horse in front of him shied causing him to fall from his mount. C contended that the accident had been caused by M negligently bringing his horse too close in front of the horse which shied. The judge in the court below found that M's actions, whilst careless, did not breach his duty of care to C within the context of the race. On appeal, C argued that the judge had set the threshold of liability too high.

Held, dismissing the appeal, that the judge had applied the right test appropriately to the facts. He had correctly identified that C had to show "something more serious" by M than a lapse in care or skill or an "error of judgment".

Held: Appeal allowed. In the context of 'horseplay' there is a breach of the duty of care only where the defendant's conduct amounts to recklessness or a very high degree of carelessness. The defendant had consented to the risk of injury occurring within the conventions and understanding of the game.

Lord Justice Dyson: "If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimant's head, then there might have been a breach of the duty of care. But what happened here was, at its highest, "an error of judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the defendant's conduct came nowhere near recklessness or a very high degree of carelessness." The game was played on the basis that the objects were thrown at no particular part of the body. It follows that an object thrown in the general direction of a participant, without negligence and without intent to cause injury, but which happened to hit him in the face, was being thrown in accordance with the understandings and conventions of the game, and in a manner to which the participants had consented.

Held: A jeweller is not bound to take the same precautions as a surgeon would take, and D had taken all reasonable precautions. C was unable to prove that the operation was negligently performed, and that the abscess which formed in her neck was due to the negligence. C lost

Held: A doctor is not guilty of negligence is he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

The House of Lords formulated the Bolam test:"a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view." Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent". C lost

MCNAIR J: "where you get the situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test isthe standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.“

“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 men skilled in that particular art….. Puttingit the other way round, a doctor is not negligent, if he is acting inaccordance with such a practice, merely because there is a body of opinion thattakes a contrary view.”

When judging if a doctor falls below the standard expected they ask if"...the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion... A man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."Until recently it was the standard test for professional cases where two or more genuine and respected views are held. This test allows the profession to be 'self-regulating' using the evidence of what other doctors do. It is argued, therefore that doctors are not answerable for their actions in the courts, because:

1. They are allowed to set their own standards.
2. It overprotects professionals;
3. It is inconsistent with negligence principles generally;
4. It can often legitimize quite marginal practices;
5. Definition of a competent body of opinion is too imprecise;
6. The test can lead to professionals closing ranks.
   

Held: The CofA held - and not disputed in the HofL -that here is no concept of team negligence, each member is required to observe the standard demanded. On the evidence and finding of fact could not determine which negligent act caused the condition. Junior doctor does not owe a lower standard, he should be of the standard of someone holding his post [comment] this may be logically impossible. Onus of proof in medical negligence rests on the claimant

C lost, a retrial ordered.

HELD Bernard Livesey QC found that there was no way to establish that the herbs could be known to contain toxic substances. Yet on the balance of probabilities, the herbal concoction was the cause of death. It was held that Mr Shakoor had an "idiosyncratic" reaction, a rare and unlucky allergic response to the herbal mix. So long as the herbalist complies with the UK's laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of the Eternal Health Co. was not liable for the death of Mr Shakoor.

Held, that D could only rely on this defence for the years up to about 1963, while there was a lack of social awareness on the part of employers. Once knowledge and protectors became available, D owed a duty of care, and was in breach of that duty between 1963 and the time when he provided ear protection. P was therefore only entitled to recover for damage suffered between those dates. Full allowances in P's favour would be made for the uncertainties known to be involved in any apportionment.

Lord Scarman said: "There is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence ..."

The procedure considered safe by only 4-5 out of 250 consultants. D appealed against the dismissal of her medical negligence claim, on the grounds that the wrong test was applied to determine whether the surgeon's actions were negligent.

Held, dismissing the appeal, that BOLAM established that a doctor who acted according to practices accepted by a responsible body of doctors was not negligent. The court was entitled to find that this requirement was satisfied even where the number of specialist doctors who would accept the doctor's practices was small. In this context a body of doctors which could not be described as "substantial" might nevertheless be "responsible",

Held: A doctor may be negligent even if there is a body of medical opinion in his favour: he must also be able to show that this opinion has a logical basis. Only very rarely would a judge decide that the opinions of a number of otherwise competent doctors were not reasonably held, and this was not such a case. The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case". The court was not obliged to hold that a doctor was not liable for negligent treatmentor diagnosis simply because evidence had been called from medical experts whogenuinely believed that the doctor's actions conformed with accepted medicalpractice. The reference in Bolam to a "responsible body ofmedical men" meant that the court had to satisfy itself that the medicalexperts could point to a logical basis for the opinion they were supporting.On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided. C lost

Held, dismissing the appeal, that if there was a significant risk, of the order of 10 per cent, then it was the duty of the doctor to inform the patient so that he or she could make an informed decision. In the instant case, the risk was estimated at 0.2 per cent and, given P's distressed condition, the court would not interfere with N's clinical decision not to inform P of the minor risk of non intervention. It was noted that there was a certain risk involved in a Caesarean section and had P been informed of the minor risk resulting from delay it was likely that she would have reluctantly followed the advice of N.

Held, dismissing the appeal, that the trial judge was entitled to carry out her own assessment of risk in the circumstances and was not bound to follow the opinions of a body of experts. The opinion could be subjected to scrutiny in order to ascertain whether it was based on logic. In the instant case, given that an element of risk was involved, the judge was entitled to consider whether the experts properly considered the risk when formulating their opinion. The judge had not erred in concluding that it was not a reasonable exercise of a GP's discretion to leave the patient at home in the circumstances.

HELD Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.

HELD 3:2 decision (Lord Bingham & Lord Hoffman dissenting) appeal dismissed. Lord Steyn, Lord Hope and Lord Walker held that the "but for" test was satisfied, so far as Miss Chester was concerned. Although the risk of the operation going wrong would not at all have been changed had Miss Chester been warned, it was the duty of the doctor to warn her. It is a basic principle of good medical practice that adults should consent on a fully informed basis to surgery, aware of all risks. Dr Afshar had therefore violated her right to choose. If damages were not awarded, that duty would be a hollow one.

Lord Hope: "To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty."

Held: There was no breach of duty. The risk was not foreseeable as it was an unknown risk at the time. Denning LJ. said, “We must not look at the 1947 incident with 1954 spectacles.” It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus, since no reasonable anaesthetist would have stored the anaesthetic differently, it was inappropriate to hold the hospital management liable for failing to take precautions.