A Critical Examination of the Concept of Breach of Duty of Care

A check on this breach is to determine if the action was forseeable. In other words would a reasonable person in similar circumstances be able to foresee the injury or action? If the answer is "yes" that a reasonable standard of care should have, but was not met, then there was a breach of duty of care.

The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law has recognized relationships in which one person owes a duty to another. What was lacking was a general principle of which the various cases were illustrations. The second purpose is one of limitation, setting the boundaries within which one person could be liable to another for the consequences of careless behaviour.

Finding a General Test

A number of attempts have been made to expound such a general test. We will look at four of the most influential.

a. The Neighbour Principle

Donoghue v Stevenson was important in two respects. First, by a majority, the House of Lords recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson. Secondly, Lord Atkin enunciated a broad principle of liability. A duty was owed to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…’ He described such people as ‘my neighbours’: so his definition of the duty is called the ‘neighbour principle’.

b. A Revised Test

There were many developments in the law of negligence in the years following that decision. These led Lord Wilberforce to redefine the neighbour principle. He turned it into a two-stage test in Anns v Merton London BC. The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. If so, a prima facie duty of care arose. The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed. This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991.

c. The Current Test: Foresight, Proximity and Fairness

The test is now stated in this form. The claimant has to show three things if there is to be a duty of care:

• It was reasonably foreseeable that a person in the claimant’s position would be injured.
• There was sufficient proximity between the parties.
• It is fair, just and reasonable to impose liability.

There is no single case identified with this test, but one of its best expositions is in Caparo Industries v Dickman [1990] 2 AC 605. There is a particularly helpful discussion of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v Dickman [1989] QB 653 at 678-680. Notice that the decision of the four tests:

- The neighbour principle

- A revised test (Lord Wilberforce)

-  The current test: foresight, proximity and fairness

- An alternative test: assumption of responsibility.

These three tests are very similar. In particular, notice that:

• They are very general. It is possible to understand what they mean in practice only after studying a number of illustrative cases.
• Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkin’s test as well. Notice his use of ‘ought’ and ‘reasonably’. There is a large moral component to his test. It is not just about what can be foreseen, but about what ‘ought’ to be foreseen
• These tests are of most use when the law is uncertain.

These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations. Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the House of Lords in respect to the liability of lawyers). If the question you are answering is about a motorist knocking down a pedestrian, the duty of care is established by many previous cases and there is no need to go through the tests for establishing a duty afresh.

d. An Alternative Test: Assumption of Responsibility

For some purposes, an alternative test has been developed, namely whether there had been a voluntary assumption of responsibility by the defendant for the claimant. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss.

Elements of Negligence Claims

Negligence suits have historically been analyzed in stages, called , similar to the analysis of crimes. Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: , breach, causation, and damages. Each are defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking.

The case of  illustrates the law of negligence, laying the foundations of the  principle around the . Plaintiff Ms. Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Mr. Stevenson of Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed . She then sued Mr. Stevenson, though there was no relationship of contract, as the friend had made the payment . As there was no  the doctrine of  prevented a direct action against the manufacturer, Mr David Stevenson. In his ruling, justice Lord MacMillan presiding over the case defined a new category of tort, (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort - "products liability") because it was analogous to previous cases about people hurting each other.  interpreted the biblical passages to ‘love thy neighbour’, as the legal requirement to ‘not harm thy neighbour’. He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence. In England the more recent case of  [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable, (2) there must be a relationship of proximity between the plaintiff and defendant, and (3) it must be 'fair, just and reasonable' to impose liability.

However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

BREACH OF DUTY OF CARE

"The most fundamental ingredient of the tort of negligence is the breach of the duty of care which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail."

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not restricted to professionals or persons under written or oral contract; we all have a duty to take reasonable care for others and their property. Anyone who unreasonably runs a risk that results in harm to others or their property, breaches their duty of reasonable care. An example is the case of  which occurred in the English countryside, where cricket balls were seldom hit far enough to endanger to local passersby, but one day one was. It hit Mrs. Bolton on the head, who was walking nearby. Although she was hurt, the court said she did not have a legitimate claim. 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in , the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.

Factual Causation

For a defendant to be held , it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on  bills and compensations, which sometimes drove compensating companies out of business.

Legal Causation or Remoteness

Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of  "liability in an indeterminate amount for an indeterminate time to an indeterminate class". It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a '' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. A 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) is the same as the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?

For instance, in , the judge decided that the defendant, a railway was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train  had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because she was hurt, she sued the train company who employed the conductor for negligence.

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the court agreed, however, it was divided when it came time to explain the reason why the defendant was not liable. One view was that the defendant owed no duty of care to the defendant, because a duty was owed only to foreseeable plaintiffs. This was the view advanced by Judge Cardozo. The other view was that the defendant owed a duty to the defendant, regardless of foreseeability, because all men owe one another a duty not to act negligently. This was the view advanced by Judge Andrews. According to Andrews, however, the defendant still should not be liable because, despite having owed a duty, and breached it, the breach was not the proximate cause of the injury.

This difference of opinion in the role of remoteness continues to trouble American courts. Courts follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in the . The Wagon Mound was a ship in  harbour. The Wagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner. In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v Coffey. The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.

ESTABLISHING BREACH OF DUTY OF CARE

“The most fundamental ingredient of  the tort of negligence is the breach of the duty of care which must be actionable in law and not a moral liability, and until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the  action must fail.”

In establishing breach of duty of care, the Court must determine whether:

a. The defendant has done something which a prudent or reasonable man would not do, or

b. The defendant has failed to do something which a reasonable man would do.

It must assess how reasonable man would behave in considering the following:

1. The Magnitude of the Risk

This can occur in 2 ways:

1. High risk as so likely to happen

2. High risk as consequences of it happening are so serious for claimant.

The greater the risk, the more precautions have to be taken.

In Bolton v Stone the claimant was standing in the road when she was struck by a cricket ball which was hit out of the defendants’ ground. The evidence was this had happened 6 times in preceding 30 years. It was held that the risk was so small that the defendants were justified in not taking further measures to eliminate the risk.

In Paris v Stepney Borough Council, the claimant who had only one good eye, went completely blind when, during the course of his employment a chip of metal entered his good eye. He sued his employer for negligence, contending that as his employer knew he only had one good eye, they should have provided him with goggles. The employer’s defence was that it was not customary to provide goggles to their employees.

Lord Morton said “The more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer should take”. The employer was found in breach of his duty of care in failing to provide goggles.

2. The cost and practicality of measures to overcome the risk

In Latimer v AEC Ltd (1953) HL the floor of the defendant’s factory became flooded after heavy rain. The water mixed with some oil and the floor became slippery. The defendant sprinkled sawdust but did not have sufficient sawdust to cover the entire floor. The claimant employee slipped on an uncovered area of the floor and sustained an injury. The claimant alleged that the defendant was negligent in failing to close the factory that day and send the workers home. The House of Lords held that in the circumstances of the case the employer had taken reasonable precautions and was not in breach of duty. (Where the risk is great employer may have to close business – fire and structural damage).

3. The purpose of the Defendant’s Act

In Watt v Herford CC (1954) CA, a Fireman was injured by the movement of a heavy jack whilst travelling in a lorry which was not properly equipped to carry it. The Jack had been placed on the lorry as it was urgently needed to save the life of a woman who had become trapped under a bus. Held that in these circumstances the Defendants were justified in exposing the claimant to the risk. Lord Denning said “The saving of life or limb justifies taking considerable risk”.

Test of the Reasonable Man v Characteristics of the Defendant

Legal standards generally take no account of the personal characteristics of the Defendant. It is not sufficient for the defendant to say he did his incompetent best. Inexperience or lack of intelligence or slow reactions provide no excuse to a charge of negligence. Nor will a defendant be able to rely on disability – a partially sighted driver and learner driver owe the same duty of care as one with normal sight. But there are cases which are approached differently.

1. Children

In Mullin v Richards (1998) CA, two 15 year old girls engaged in play fight with plastic rulers. One of the rulers broke and a bit of plastic entered the eye of one of the girls (the claimant) causing her to lose her sight in that eye. Hutchinson LJ said, “The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15 year old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave risk to the injury... the test is whether an ordinarily prudent and reasonable 15 year-old schoolgirl in the defendant’s situation would have realised as much”.

2. Professionals

Persons holding themselves out as having a particular skill or profession must attain the standard of the reasonably competent person exercising that skill or profession. In Bolam v Friern Hospital Management Committee (1957), McNair J said, “…where you get a situation which involves the use of some special skill or competence, then the test, is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. It is the test of the ordinary skilled man exercising and professing to have this special skill….A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. In the case, the claimant had undergone electroconvulsive therapy which resulted in serious injuries. He alleged negligence and said he should have been informed of the risk of fracture before he consented to the treatment and that the drugs should have been given to him before the therapy to make him more relaxed. HELD that not negligent because the practices were consistent with those in other hospitals. It is part of professional’s duty to keep abreast of new developments and techniques.

CAUSATION

In Barnett v Chelsea & Kensington Hospital Management Committee (1968), the claimant’s husband became ill after drinking tea which contained arsenic. He was taken to hospital but the doctor in casualty did not examine him and admit him. Instead, he asked the claimant’s husband to see his own GP. A few hours later he died. However, had the Doctor not been negligent and admitted the claimant’s husband to hospital, the claimant’s husband would still have died. It was held that Doctor’s negligence did not cause death.

THE “BUT FOR” TEST

If harm to the claimant would not have occurred “but for” the defendant’s negligence, then that negligence is a cause of the harm but if the loss would occur in any event, the defendant’s conduct is not a cause.

The “but for” test will not always solve the problem. Where two simultaneous wrongs are done to the claimant, each of which would in itself be sufficient to cause the damage.

Concurrent Causes

In Fitzgerald v Lane (1988) HL, the claimant crossing road when two cars, driven by D1 and D2 hit him and he sustained a neck injury. Both drivers were found to be negligent. The issue here was causation. Evidence could not establish which driver caused injury to his neck. Both drivers were held jointly liable.

In Hale v Hants & Dorset Motor Services (1947), branches of a tress owned by D1, were overhanging a highway. D2’s employee drove a bus too near the pavement side of the road and a branch shattered a window on the bus, injuring a passenger. Both D1 and D2 were held to be negligent and both were liable.

In Baker v Willoughby (1970) HL, claimant’s left leg was injured in a car accident caused by the negligence of the defendant. Before the court case, the claimant was shot to the leg by robbers at his work place. The leg had to be amputated. Defendant argues that should only be liable to compensate the claimant until the date of the shooting as the second injury obliterated (wiped out) the first. Held claimant’s right of recovery was not limited to the loss suffered only before the robbery. He was entitled to damages that he would have received had there been no subsequent injury.

LORD REID said,

“A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is his inability to lead a full life. The second injury does not diminish this. Why should it be regarded as having obliterated or superseded them? If the later injuries merely become a concurrent cause of the disabilities caused by the injury inflicted by the defendant, then in my view they cannot diminish the damages.”

In Jobling v Associated Diaries Ltd (1982) HL, in 1973 the claimant suffered injury as a result of a tortuous act of his employer. The injury reduced his earning capacity. In 1976 the claimant started suffering from a spinal disease which meant that he could not work at all. Held that the defendant had to compensate the claimant for his reduced earning capacity from 1973-1976 but not thereafter. The reasoning was that the illness is a vicissitude of life and as such should be a factor taken into account in assessing damages for future loss of earnings.

LORD WILBERFORCE said,

“I think that Lord Reid’s theory of concurrent causes even if workable on the particular facts of Baker v Willoughby (where successive injuries were sustained by the same limb) is as a general solution not supported by the authority he invokes not workable in other cases.”

PROOF OF NEGLIGENCE

Importance of Evidence in Establishing Proof of Breach of Duty of Care

The claimant bears the burden of proving, on the balance of probabilities, that the defendant was negligent. However, in some situations a claimant may be able to rely on the maxim res ipsa loquitur, that the thing speaks for itself. By this rule of evidence, the mere fact of an accident occurring raises the inference of the defendant's negligence, so that a prima facie case exists. "You may presume negligence from the mere fact that it happens."

When the Maxim “Res Ipsa Loquitor” Applies

There are three conditions that must be fulfilled before res ipsa loquitur applies.

(a) The defendant must have control over the thing that caused the damage.

(b) The accident must be such as would not normally happen without carelessness.

(c) The cause of the accident must be unknown.

The Effect of Res Ipsa Loquitur

There are two opinions as to the effect of res ipsa loquitur.

(a) It raises a prima facie inference of negligence, which requires the defendant to provide a reasonable explanation of how the accident could have occurred without negligence on his part. If the defendant provides an explanation, the inference is rebutted and the claimant must prove the defendant's negligence.

(b) It reverses the burden of proof requiring the defendant to show that the damage was not caused by his failure to take reasonable care.

The opinion of the Privy Council is that burden of proof does not shift to the defendant because the burden of proving negligence rests throughout the case on the claimant.

A party suing for negligence must show that the defendant owed him a duty of care and that he suffered damage in consequence of the defendant's failure to take care.

For a plaintiff to succeed in an action for negligence, he or she must plead all the particulars in sufficient detail of the negligence alleged and the duty of care owed by the defendant and all these must be supported by credible evidence at the trial.

In the case of Anyah v Imo Concorde Hotels Ltd & 2 Ors (2002) 18 NWLR (pt. 799) at p 377, the court held

"For the defendant to be liable for negligence there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part."

“The doctrine of res ipsa loquitur does not apply in food poisoning cases. There is no law to the effect that if someone consumes rice and he thereafter feels stomach discomfort, then viola, the rice is the cause of the discomfort.”

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