Negligence: Breach of Duty and Damage

Negligence: Breach of Duty and Damage

Once a duty of care is established, the claimant must prove that the defendant breached that duty and that the breach caused legally recognised damage. These are the second and third elements of the tort of negligence.

Breach of Duty

A defendant breaches their duty of care by falling below the standard of care expected of a reasonable person in the defendant's position. The standard is objective — the court asks what a reasonable person would have done, not what this particular defendant would have done.

The Standard of Care

The reasonable person test — Blyth v Birmingham Waterworks Co [1856]:

> "Negligence is the omission to do something which a reasonable man... would do, or doing something which a prudent and reasonable man would not do."

Professionals are judged against the standard of a reasonably competent practitioner in that field:

• Bolam v Friern Hospital Management Committee [1957] — a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion, even if other doctors would have acted differently
• Bolitho v City and Hackney Health Authority [1998] — the House of Lords qualified Bolam: the court is not bound to accept expert opinion if it is not capable of logical analysis or is not reasonable. The body of opinion must have a logical basis

Learners are held to the same standard as a competent, qualified person:

• Nettleship v Weston [1971] — a learner driver owed the same standard of care as a reasonably competent driver. The passenger knew she was learning, but this did not reduce the standard

Children are judged against a reasonable child of the same age:

• Mullin v Richards [1998] — two 15-year-old schoolgirls fencing with plastic rulers; one broke and a fragment injured a girl's eye. The standard was that of a reasonable 15-year-old. A reasonable 15-year-old would not have foreseen the risk

Risk Factors

In determining whether the defendant fell below the standard of care, the court considers several factors (from Bolton v Stone [1951] and subsequent cases):

1. Likelihood of harm

• Bolton v Stone [1951] — a cricket ball was hit out of the ground and struck a passer-by. A ball had been hit out only about six times in 30 years. The risk was so small that a reasonable person would not have taken precautions
• Haley v London Electricity Board [1965] — a blind man fell into a trench dug in the pavement. The precautions (a long-handled hammer laid across the pavement) were adequate for sighted pedestrians but not for blind persons, whose presence was foreseeable

2. Severity of potential harm

• Paris v Stepney Borough Council [1951] — a one-eyed welder was not given safety goggles. A chip of metal blinded his remaining eye. The employer was negligent — the severity of potential harm (total blindness) was much greater for this employee, warranting extra precautions

3. Cost and practicability of precautions

• Latimer v AEC Ltd [1953] — a factory floor became slippery after flooding. The employer spread sawdust on the floor but could not cover every inch. The court held that the employer had done enough — the only alternative was to close the factory, which would be disproportionate to the risk
• The cost and effort of precautions must be weighed against the magnitude of the risk

4. Social utility (benefit) of the defendant's activity

• Watt v Hertfordshire County Council [1954] — a fireman was injured when a heavy jack slipped during an emergency rescue. The fire authority was not negligent — the risk of carrying the jack on an unsuitable vehicle was justified by the urgency of saving life
• Compensation Act 2006, s.1 — the court may have regard to whether requiring precautions would prevent or discourage* a desirable activity (e.g. organising sports events, educational trips)

Res Ipsa Loquitur

"The thing speaks for itself." Where the claimant cannot prove exactly how the accident happened, the court may infer negligence if (Scott v London and St Katherine Docks Co [1865]):

1. The thing causing the damage was under the exclusive control of the defendant

2. The accident would not normally have happened without negligence

3. There is no other explanation for the accident

• Ward v Tesco Stores [1976] — the claimant slipped on yoghurt on the supermarket floor. Tesco could not show it had a reasonable system for cleaning — the inference of negligence was drawn
• If the defendant provides a plausible, non-negligent explanation, the inference is rebutted

Damage (Causation and Remoteness)

The claimant must prove that the defendant's breach caused their damage and that the damage was not too remote.

Factual Causation — The "But For" Test

The claimant must show that but for the defendant's breach, the damage would not have occurred.

• Barnett v Chelsea and Kensington Hospital [1969] — a night watchman attended A&E after drinking tea containing arsenic. The duty doctor refused to see him and told him to see his own GP. He died of arsenic poisoning. The hospital breached its duty, but the poisoning was already fatal — the watchman would have died even with proper treatment. The "but for" test was not satisfied.
• Cork v Kirby Maclean Ltd [1952] — D's failure to provide guard rails caused C to fall; the but-for test was satisfied because guard rails would have prevented the fall

Difficulties with the but-for test:

• Multiple causes — where two or more negligent acts each independently would have caused the damage, the but-for test produces unjust results (neither defendant is the but-for cause). In Bailey v Ministry of Defence [2008], the Court of Appeal held that where the breach materially contributed to the outcome, causation is established
• Mesothelioma cases — in Fairchild v Glenhaven Funeral Services [2002], the House of Lords modified the but-for test: where the claimant was exposed to asbestos by multiple negligent employers and it was impossible to identify which employer's exposure caused the disease, it was sufficient to show that each employer had materially increased the risk. This was extended in Barker v Corus [2006] (proportional liability) and then reversed by the Compensation Act 2006, s.3 (restoring joint and several liability for mesothelioma claims)

Legal Causation — Intervening Acts

Even if the but-for test is satisfied, the chain of causation may be broken by a novus actus interveniens (new intervening act):

Acts of third parties:

• Knightley v Johns [1982] — a police inspector negligently ordered a constable to ride against traffic in a tunnel after an accident caused by D's negligence. The inspector's order broke the chain between D's negligence and the constable's injury

Acts of the claimant:

• McKew v Holland and Hannen and Cubitts [1969] — C's leg was weakened by D's negligence. He attempted to descend steep stairs without a handrail and fell. His unreasonable act broke the chain of causation for the second injury

Natural events:

• Carslogie Steamship Co v Royal Norwegian Government [1952] — a ship was damaged by D's negligence, then sustained further damage in a storm while crossing the Atlantic for repairs. The storm damage was an independent natural event.

Remoteness of Damage — The Wagon Mound Test

The defendant is liable only for damage that was reasonably foreseeable at the time of the breach.

• Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No. 1)) [1961] — oil was negligently discharged into Sydney Harbour. It spread to C's wharf. Welding sparks ignited the oil, causing fire damage. The Privy Council held that fire damage was not reasonably foreseeable because furnace oil on water was not known to ignite easily. Only foreseeable damage is recoverable. This replaced the old "direct consequence" test from Re Polemis [1921].

• Hughes v Lord Advocate [1963] — Post Office workers left an open manhole covered by a tent and surrounded by paraffin lamps. A boy picked up a lamp, dropped it into the manhole, and was injured by an explosion. The explosion was unforeseeable, but burn injuries from paraffin lamps were foreseeable. The type of damage (burns) was foreseeable, even though the precise manner (explosion) was not. D was liable.

• Doughty v Turner Manufacturing [1964] — an asbestos cement cover was knocked into a vat of molten liquid. An eruption caused by a chemical reaction injured C. Burns from splashing would have been foreseeable, but the chemical eruption was an entirely different type of event. D was not liable.

The Thin Skull Rule

The defendant must take the claimant as they find them:

• Smith v Leech Brain [1962] — D's negligence caused a burn to C's lip. C had a pre-malignant condition; the burn triggered cancer and C died. D was liable for the full extent of the damage, even though the cancer was not foreseeable. Once the type of harm (burn/physical injury) was foreseeable, D was liable for its full consequences.
• This is not an exception to remoteness — it applies after the type of damage is found to be foreseeable

Evaluation

• The objective standard of care may seem harsh (e.g. learner drivers), but it protects claimants and promotes consistency
• The Bolam test has been criticised for allowing the medical profession to set its own standard of care — Bolitho was an important qualification
• The but-for test struggles with multiple-cause cases — Fairchild was a necessary but controversial departure
• The Wagon Mound foreseeability test is generally fair, but the distinction between "type" and "manner" of harm (Hughes) can be difficult to apply
• The thin skull rule ensures full compensation but can impose heavy liability

Exam approach:

• Apply breach factors systematically: likelihood, severity, cost, utility
• For causation, start with the but-for test, then consider intervening acts
• For remoteness, identify the TYPE of damage and apply the Wagon Mound test
• Apply the thin skull rule where the claimant has a pre-existing vulnerability