Negligence:

Breach of Duty of Care

Dr. Kate Harrington
k.g.a.harrington@exeter.ac.uk
Negligence: Overview
1. Duty of care
2. Breach of duty
3. Causation in fact
4. Causation in law
5. Defences
27.10.2014
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Overview: Breach of Duty

The Reasonable Person Test
Skilled Defendants
Defendants Personal Characteristics
Factors Relevant to the Standard of Care
Proof of Negligence
The Reasonable Person Test

What would the reasonable person have done in the
defendants circumstances?


What behaviour was reasonable in the situation at
hand?
McFarlane v Tayside Health Board
[1999] UKHL 50
'commuters on the London
Underground Lord Steyn
Mr. McFarlane vasectomy Oct 1989;
Letter March 1990 told sperm
counts negative.
Sept 1991 Mrs. McFarlane pregnant
& 5
th
child born 1992.
Claim: Mrs. McFarlane suffered pain
& distress from pregnancy & birth
(10,000); costs rearing child
(100,000).
Costs of pregnancy ALLOWED;
costs of raising healthy child (NOT
ALLOWED)
Blyth v Birmingham Waterworks Co
[1856] 11 EX 781
Birmingham Water Works
Company (D) installed
fireplug into the hydrant near
house of Mr Blyth (C).
That winter, there was a
severe frost Plug failed
causing flood & damage to
Mr Blyth's house.
Mr Blyth sued Birmingham
Waterworks for negligence.
Failed: frost not in
contemplation (Bramwell
dissenting)
The Reasonable Person Test
Baron Alderson:
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.
Blyth v Birmingham Waterworks Co [1856] 11 EX
781:

Glasgow Corporation v Muir
[1943] 2 AC 448
Sunday School children were to be
having a picnic, but it rained.
Outing leader asked tearoom manager
for children to picnic there.
Large tea urn carried along corridor by
two adults to main tearoom.
Tea urn overturned & scalded girl.
Parents sued Glasgow Corporation,
claiming they owed child duty of care &
they had breached this.
Manageress owed DofC, generally,
BUT, did not owe additional duty of
care to Sunday School.
Objective test
Glasgow Corporation v Muir [1943] 2 AC 448
The standard of foresight of the reasonable man is in one
sense an impersonal test. It eliminates the personal equation
and is independent of the idiosyncrasies of the particular
person whose conduct is in question. Some persons are by
nature unduly timorous and image every path beset by lions;
others, if more robust temperament, fail to foresee or
nonchalantly disregard even the most obvious danger. The
reasonable man is presumed to be free both from over-
apprehension and from over-confidence.
Lord Macmillan
A Subjective Element
What would the reasonable person have done
in the defendants circumstances?
This brings into play issues such as whether the
defendant was acting in an emergency (external
circumstances) but the courts will not generally
take into account the defendants personal
characteristics.


The General Standard of
Skilled Defendants
The Bolam Test
The test is the standard of the ordinary skilled
man exercising and professing to have that
particular skill. It is sufficient if he exercises the
ordinary skill of an ordinary competent man
exercising that particular art.
Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582

Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
Mr Bolam (C) voluntary patient at
mental health institution run by
Friern Hospital Management
Committee (D)
He agreed to undergo electro-
convulsive therapy.
Not given muscle relaxant or
restrained.
Suffered serious injuries.
Sued hospital for (1) not giving
relaxants (2) not restraining (3)
not warning of risks.
D not negligent.
The General Standard of
Skilled Defendants: The Bolam Test

It is not necessary for you to decide which of two
practices is better practice, as long as you accept
that what the defendant did was in accordance with
practice accepted by reasonable persons.
McNair J. in
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582
The Bolam Test
Sidaway v Bethlem Royal Hospital Governors [1985]
AC 871 (consent for operation; neurosurgeon did not
mention 1% risk of paraplegia: risk materialised)
The test is: whether Dr fell below standard of reasonable Dr.
S/he has not breached this standard if a reputable body of Drs
would have done/omitted to do the same thing. (NB this does
not even have to be the majority.)
Newell v Goldenberg [1995] 6 Med LR
Bolitho City and Hackney HA
[1998] AC 232
A boy suffered brain damage after doctor failed to
attend.
The HL found for D, but on the basis that they were
entitled to choose between two bodies of opinion and
to reject the illogical ( Lord Browne-Wilkinson in
Bolitho at 243)
In other words the courts must believe that the experts
have reached a defensible conclusion.


The Bolam Test
Chester v Afshar [2005] 1 AC 134
1-2% risk of cauda equina syndrome
Risk materialised.
Lord Steyn, Lord Hope & Lord Walker; Lord Bingham &
Lord Hoffmann (dissenting)
A basic principle of good medical practice that adults should
consent on a fully informed basis to surgery, aware of all
risks?




Chester v Afshar [2005] 1 AC 134
The most plausible [account] emphasizes the integrity rather
than the welfare of the choosing agent; (...) Recognizing an
individual right of autonomy makes self-creation possible.
It allows each of us to be responsible for shaping our
lives according to our own coherent or incoherent - but,
in any case, distinctive - personality. (...) We allow
someone to choose death over radical amputation or a blood
transfusion, if that is his informed [emphasis added] wish,
because we acknowledge his right to a life structured by his
own values.
R.Dworkin,
Life's Dominion: An Argument about Abortion and Euthanasia, 1993: 224.
Policy considerations
Sidaway is not overruled, but this is a move
towards patient autonomy, with effectively a
special rule being adopted:
Not to encourage practice of defensive medicine:
Lord Denning in Whitehouse v Jordan [1980] 1 All E.R.
650;
Lord Kilner Brown in Ashcroft v Mersey Regional Health
Authority [1983] 2 All E.R. 245
Not to encourage a culture of litigation in medical
cases
Recent application of Bolam/Bolitho
Jones v North West SHA [2010] EWHC 178
(QB)(consultant obstetrician)
M's Guardian v Lanarkshire Health Board [2010]
CSOH 104 (consultant and the senior registrar)
Fallon v Wilson [2010] EWHC 2978 (QB) (GP)
Dainton v Powell [2011] EWHC 219 (QB) (GP)
Fraser v Bolt Burdon [2009] EWHC 2906 (QB)
(lawyers)
The court does not take into account
the defendants personal characteristics
1. Those in training to be experts:
Nettleship v Weston [1971] 2 QB 691
Cf: Mansfield v Weetabix Ltd [1998] 1 WLR 1263
Wilsher v Essex Area Health Authority [1988] AC 1090
2. Amateurs:
Wells v Cooper [1958]
The court does not take into account the
defendants personal characteristics
3. The position of Children an exception:
Mullin v Richards [1998] 1 WLR 1304
Orchard v Lee [2009] EWCA Civ 295
4. Date of knowledge:
Roe v Minister of Health [1954] 2 QB 66 CA

Factors relevant to the Standard of
Care
1) The Likelihood of Harm
2) The Serioussness of the Consequences
3) The Utility of Defendants Conduct - Compensation Act 2006
4) The Cost/Practicability of Taking Precautions
5) The Claimants Financial Circumstances
1) The Likelihood of Harm
Bolton v Stone [1951] AC 850
HL
(cf. Miller v Jackson [1977])

Haley v London Electricity
Board [1965] AC 778

Overseas Tankship (UK) Ltd v The Miller Steamship
Co Pty, The Wagon Mound (No 2) [1967] 1 AC 617
D negligently discharged furnace oil into sea.
Only small risk that would ignite.
It didcausing damage to Ps ship.
A reasonable person would not ignore even a small risk
if action to eliminate it presented no difficulty, involved
no disadvantage and required no expense (at 642)
2) The Seriousness of the
Consequences
Paris v Stepney BC
[1951] AC 367
Paris employed by
Stepney BC as general
garage hand.
Only had sight in one
eye.
No protective goggles
given.


3) The Utility of Defendants Conduct

The commercial end to make a profit is very
different from the human end to save life or
limb.
Denning LJ in Watt v Hertfordshire CC[1954] 1
WLR 835
3) The Utility of Defendants Conduct
The Compensation Act 2006
S 1 Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty
may, in determining whether the defendant should have taken
particular steps to meet a standard of care (whether by taking
precautions against a risk or otherwise), have regard to whether a
requirement to take those steps might-
(a) prevent a desirable activity from being undertaken at all, to a
particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with
a desirable activity.
4) The Cost/Practicability of Taking
Precautions
Latimer v AEC Ltd. [1953] AC 643
Exceptionally heavy rainstorm
flooded factory floor & oil from
channels rose to surface.
Precautions taken, including
sawdust.
Plaintiff slipped heavy barrel
crushed ankle.
The trial judge found a breach of
common law duty. CA reversed
this decision.

5) The Defendants Financial
Circumstances
lack of funds is
generally not a
defence for anyone,
however...
Knight v Home Office
[1990] 3 All ER 237

Mentally disturbed prisoner
was known to be a suicide
risk.
Hanged himself despite being
observed every 15 minutes by
staff in prison hospital wing.
Court said not in breach of
their DofC towards prisoner,
as was not correct to require a
prison hospital to provide the
same facilities & staffing levels
as ordinary psychiatric
hospital.
Proof of Negligence
Claimant must make out his/her case on the
balance of probabilities

1) Civil Evidence Act 1968

1) Res Ipsa Loquitor (the thing speaks for itself)
Scott v St Katherines Dock [1865] 3 H&C 596
Res Ipsa Loquitor
3 conditions:
1) accident could not have occurred without
negligence
2) there was complete control by the
defendant
3) the cause is unknown to the claimant

Res Ipsa Loquitor
Same debate about whether this reversed burden
of proof, which makes a difference if it is 50:50.

The view now is that it does not:
Ng Chun Pui v Lee Chuen Tat [1988] RTR 296
George v Eagle Air Services Ltd [2009] UKHL
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Further Reading
Brazier, M and J. Miola Bye-Bye Bolam: A Medical Litigation Revolution?, (2000) 8
Med L Rev, 85-114.
Fanning, John BUneasy lies the neck that wears a stethoscope: some observations
on defensive medicine. Professional Negligence. . (2008) Vol 24 (2): 93-103
Grubb, A Causation and the Bolam Test 1 Medical Law Review (1993) 241.
Kidner, R The Variable Standard of Care, Contributory Negligence and Volenti
Legal Studies, (1991) 1.
Lord Woolf, Are the Courts Excessively Deferential to the Medical Profession?
(2001) 9 Medical Law Review 1
Mulheron, Rachael, Trumping Bolam: A Critical Legal Analysis of Bolithos Gloss
(2010) 69 Cambridge Law Journal 609
Sheldon, Sally A missed opportunity to reform an outdated law (Guest Editorial).
Clinical Ethics, (2009) 4: 3-5.
Williams, K Res Ipsa Loquitur still speaks (2009) 125 LQR, 567-70.
Williams, K Politics, the media and refining the notion of fault: section 1 of the
Compensation Act 2006. Journal of Personal Injury Law. (2006) 4: 347-353