Breach of duty in English law

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English Tort law

Part of the common law series
Negligence
Duty of care
Standard of care
Bolam Test
Breach of duty
Causation
Breaking the chain
Acts of the claimant
Remoteness
Professional negligence
Loss of chance
Loss of right
Res ipsa loquitur
Eggshell skull
Defences to negligence
Trespass to property
Defamation
Strict liability
Vicarious liability
Rylands v. Fletcher
Nuisance
Other areas of the common law
Contract law · Property law
Wills and trusts
Criminal law · Evidence

In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty.

1 Burden of proof
2 Objective test
3 Children
4 Professionals
5 References
6 See also

[edit] Burden of proof

The claimant bears the burden of proof in most cases to show that, on the balance of probabilities, the defendant owed a duty of care, breached that duty and, in so doing, caused loss or damage to the claimant that ought to be compensated by the award of damages. In some unusual and limited situations, a claimant may be able to rely on res ipsa loquitur, (the Latin for "the thing speaks for itself"). This shifts the burden to the defendant to show that he or she was not negligent.

[edit] Objective test

In the usual case, having established that there is a duty of care, the claimant must prove that the defendant failed to do what the reasonable person would have done in the same situation. If the defendant fails to come up to the standard, this will be a breach of the duty of care. This is judged by reference to the following factors:

What did the defendant know? According to Denning LJ. in Roe v Minister of Health (1954) 2 AER 131, the defendant will only be liable if the reasonable person would have foreseen the loss or damage in the circumstances prevailing at the time of the alleged breach of duty.
What was the degree of risk? The greater risk that serious harm can be inflicted, the greater the precautions that the defendant will be required to take.
How practical were these precautions? In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997) EWCA Civ 2644 it was held that a primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. The test is a balance of reasonableness of precautions against the likelihood of injury being sustained.
What is the social importance of the defendant's activity? If the defendant's actions serve a socially useful purpose then he or she may have been justified in taking greater risks. Thus, in Watt v Hertfordshire CC (1954) 2 AER 368, the fire brigade was not negligent in getting the wrong vehicle to the scene of an accident because valuable time would have been lost in getting the best vehicle there to help.

The minimum standard of care to be achieved by reference to the hypothetical reasonable person is objective, i.e. there is no direct reference to the actual strengths or weaknesses of the particular defendant in the instant case. Thus, anyone who drives a car on the roads is expected to meet the same minimum standard of competence required of ordinarily experienced and qualified drivers. There is no revision to set a standard for those learning to drive or for those with only a few months experience of unsupervised driving after passing the test. Nettleship v Weston (1971) 3 AER 581 is clear that those falling within the area of risk and so those who are owed the duty of care, are entitled to expect the same minimum standard even if the driver is drunk, deaf, or has only one eye (see volenti non fit injuria on whether the duty owed to a passenger is changed if the passenger knows of the driver's lack of full capacity). Similarly, a person doing work as an amateur, e.g. a DIY enthusiast saving money by undertaking electrical or plumbing work in his or her own home, must meet the same minimum standard as a qualified electrician or plumber as in Wells v Cooper (1958) 2 AER 527.

If the defendant was adopting the common customs and practices of others in the same trade or business, this will be strong evidence that he or she has not been negligent. In Gray v Stead (1999) 2 Lloyd's Rep 559 it was common practice for fishermen not to wear life-jackets, even when working on deck. Thus, although there were proposals to encourage the use of life-preservers, there were no laws or regulations requiring it. Consequently, the reasonable and prudent employer, weighing up the risks and potential consequences, was entitled to continue the practice of not wearing life-jackets. But, in cases where the issue of foreseeability is slightly different, the courts can declare a common practice to be negligent in itself. In Paris v Stepney Borough Council (1951) 1 AER 42 although safety goggles were not given to other employees, the Council owed a special duty to protect the claimant because he had already lost the sight of one eye. The test is as to the severity of the consequences if no action is taken. Since he was already partially blind, injury to the remaining eye would be more serious and so an additional duty was imposed on the employer.

[edit] Children

As a matter of public policy the courts have a general duty to consider the best interests of any child who becomes involved in litigation. In the Criminal Law, infancy may be an excuse, but Wenham (1998) confirms that it is not a defence to a cause of action in tort. Nevertheless, it is recognised that holding children and young persons to an adult standard could produce injustice, so the issue is whether the objective standard should be lowered to that of the ordinarily prudent and reasonable child of the same age. In Gough v Thorne (1966) 3 AER 398 a lorry driver stopped and signalled a 13½ year old girl across the road. As she passed the front of the lorry, she was struck and injured by a car being driven at excessive speed as it overtook the lorry. The issue was whether there was contributory negligence that would reduce the damages payable to the girl. Salmon LJ. said at 440 that the answer:

...depends on whether any ordinary child of 13½ could be expected to have done any more that this child did. I say any ordinary child, I do not mean a paragon of prudence; nor do I mean a scatter brained child but the ordinary girl of 13½, seeing the lorry stop to let her cross and the lorry driver, a grown-up person in whom she no doubt has some confidence, beckoning her to cross the road would naturally go straight on, no one in my view could blame her from doing so. I agree that if she had been a great deal older and hardened by experience and perhaps consequently with less confidence in adults, she might ...have not gone past the front of the lorry without verifying for herself that it was safe to do so; but it would be quite wrong to hold that a child of 13½ is negligent before she fails to go through those mental processes and relies unquestioningly on the lorry driver's signal.

In Mullins v Richards (1998) 1 AER 920 the issue was whether two fifteen year old girls would foresee that the plastic rulers they were playing with might shatter, and fragments cause injury. Prior to this case, there was no direct English law precedent on a test of the "reasonable child" for negligence. In the Australian High Court, McHale v Watson (1966) 115 CLR 199 had dealt with a twelve year old boy who had been using a welding rod about 6 inches in length to spear fish. The boy threw the rod at a post but it bounced off and struck the plaintiff in her left eye, resulting in blindness. Kitto J. said at 213:

...it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults.

This matched par. 283 of the American Restatement of the Law of Torts which states that:

...the standard by which his conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience.

The boy's behaviour was impulsive and the act of someone not yet old enough to realise the danger of throwing a sharp tool so, on the standard to be expected of an average 12 year old, he had not been negligent. Thus, in Mullins case, because there was no evidence that they had had any prior experience of such rulers breaking, the rule in Bolton v Stone (1951) 1 AER 1078 applied, namely, as Lord Porter stated at 1080:

Is it enough to make an action negligent to say that its performance may possibly cause injury or must some greater probability exist of that result ensuing in order to make those responsible for its occurrence guilty of negligence? ... It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough. There must be sufficient probability to lead a reasonable man to anticipate it.

So even if the girls had foreseen the possibility of the rulers breaking (which was uncertain), neither girl could reasonably have foreseen that injury would result from their play and so they had not breached the mutual duty of care. But a different result may be achieved if a young person acts deliberately in circumstances where there is an obvious risk of harm. In Williams v Humphrey, The Times, February 20 1975, albeit in play, a young man, almost 16 years old, pushed the father of his school friend into a swimming pool. In doing so, the man was seriously injured. Although not a man, the defendant was not a child, and the court judged him as an adult. He had deliberately exposed the man to the risk of injury. The fact that the resulting injuries were more serious than he had foreseen, was irrelevant because those injuries were of a type which were reasonably foreseeable in the circumstances. As obiter dicta in Mullins case, the court confirmed that teachers are treated as though they were reasonable parents. Hence, they cannot be expected, even with young children, constantly to supervise their behaviour. Nevertheless, school authorities and parents may be liable for failing adequately to supervise a child who injures another.