Tort Law – Explain the tests used to determine whether or not the defendant has breached his duty of care. In your view do those tests provide a clear and satisfactory way of establishing whether or not the defendant is at fault?
This question concerns the adequacy and effectiveness of the tests that determine whether or not a defendant has breached his or her duty of care. In analysing the question and providing an answer a brief background will be provided, followed by the specific rules that are applied by the courts. The rationale behind these rules will then be considered before discussing the merits of the rules.
THE CONTEXT OF DUTY OF CARE
The ‘modern era’ of the tort of negligence is generally traced to the case of Donaghue v Stevenson  AC 562. In this case Lord Atkin set out the 5 hurdles that any claimant must clear in order to establish liability in a claim for negligence. They are the existence of a duty of care in fact and in law, the breach of that duty, existence of damage, and causation. It is the third of these that is relevant for this discussion. Where it has been established that the defendant owes a duty of care, how does the court determine whether or not that duty has not been complied with?
Once it has been established that a duty of care exists the starting point in determining the conduct of the defendant arises out of Blyth v Birmingham Waterworks Co (1856) 11 Ex 781. The ruling was that;
“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” (Blyth at 784)
The clear difficulty with such a test is that it is inevitably based upon questions of fact. In spite of this handicap the courts have had qualified success in setting out clear guidelines that allow a court to have a frame for its analysis. The balancing concern is that it is built around a patchwork of case-law; from each case a specific principle can be extracted.
In Paris v Stepney Borough Council  AC 367 the court considered the potential implications of the risk. The claimant was blind in one eye and employed as a welder. He was not provided with protective equipment for his eye(s). Even though it was established that the provision of such equipment was not standard procedure the court ruled that the defendant should have considered the extreme consequences and that it was a relevant factor.
The second factor that is considered by the courts is the likelihood of the consequences occurring. In Bolton v Stone  AC 850 the court considered whether it would be reasonable to expect a cricket ground to erect a net to prevent cricket balls from leaving the ground. The court examined the probabilities of the consequences occurring and stated that the likelihood of occurrence was a relevant factor.
The case of Latimer v AEC Ltd.  AC 643 provides the third factor that is considered. The defendant is only obliged to take measures that are reasonable and it is possible that the only possible way of preventing a particular harm would require a disproportionate funding. In Latimer a product of flooding and other materials rendered the floor of the factory exceedingly slippery. The defendant’s placed sawdust but did not close the factory, a step that the claimant maintained they should have taken. The House of Lords ruled that the degree of risk had to be weighed against the extent of remedial work that was necessary. In this case it would not have been reasonable to require them to shut down the entire factory.
The most tenuous of the factors was considered in Watt v Hertfordshire County Council  1 WLR 835 where an accident occurred during an emergency services operation to douse a fire. The Court of Appeal ruled that the risk that had been taken must be weighed against the social utility of the activity. In this case the nature of the enterprise was sufficient to shield the Council from an allegation that they had breached their duties to the employee in negligence.
This balancing test is the first of two critical issues that involve the ‘breach’ question. The second is the perspective from which the actions must be drawn. This is a crucial point because between that which the claimant states could be done and what the defendant believed could be done there is likely to be a not insignificant chasm.
The crucial authority is Roe v Minister of Health  2 QB 66. In this case Denning LJ wrote that the crucial date of knowledge was the date of the incident. The defendant could not be held liable simply because the case was determined at a later date when there existed a different accepted belief or a more modern understanding. Likewise the duty will only have been breached if the defendant fails in his or her duties and this test is assessed under an objective standard of care.
Further it has been held that an inability to meet the objective standards of reasonableness does not provide a defence in law. In Nettleship v Weston  2 QB 691 a driver taking unofficial lessons was clearly incapable at the time of the accident of meeting the burdens of a reasonable driver. Nonetheless she was held to be liable for an accident because she did not meet those standards.
At the other end of the spectrum are those who have certain special skills. The pertinent authority is Maynard v Midlands Regional Health Authority  1 WLR 634 where the medical practitioner was accused of negligence. The court ruled that he had fulfilled his duty up to the point of an ordinary reasonable practitioner but that he had no satisfied the level of skill that would be expected of a specialist of his experience. As such a finding of negligence was appropriate.
The final island in the uncertain ocean of ‘breach’ law is the specific question of whether it is sufficient for a defendant to argue that the course of action that he took was justified by a core of that particular discipline. This is most regularly tested in the sphere of medical law with the ever-changing opinions causing difficulties for the judiciary. The response to this problem is contained in Bolitho v City & Hackney Health Authority  AC 232 where Lord Browne-Wilkinson pointed out that as a general rule the courts would defer to experts within a particular field but crucially that they could, in exceptional circumstances, conclude that such a body of opinion was unreasonable and disregard it. It can be said therefore that a defendant who is supported by a body of professional opinion will have a significant chance of avoiding liability but that it cannot be deemed to be a certainty.
These then are the tools that the courts have elected to use to determine when a defendant does or does not breach his or her duty of care.
There are three arguments that need to be threshed out in analysing the appropriateness of these criteria. The first is whether the test is sufficiently certain. This was identified at the outset as a dilemma because of the case-by-case approach to determining the tests. The result is pleasingly transparent from the analysis that followed; each case will inevitably have individual facts that can take an individual judge away from the ideally strict road that a precedent should form. With the assumption that few of the cases will be taken to the next level of the judicial hierarchy the result is an unsatisfactory residue of, possibly, conflicting decisions with little to protect an individual from the arbitrary independence of each individual judge.
This is certainly a valid concern but the obstacle is that there is little that can be done to alter the status quo in a positive manner. The very question that the courts are required to ask is whether anything could have been done to avoid the accident and this is not a question that lends itself to a consistent and straightforward line of jurisprudence. In every possible respect the existence of uncertainty is a necessary evil when assessing whether or not a defendant has breached their duty of care.
The second concerns the validity of granting any deference to a defendant because of the social utility of their actions. Part of this argument follows on from the first as there has been some inconsistency and uncertainty in its application. Lunney and Oliphant (Tort Law page 146) note that its application has been limited although this is immediately countered by the point that it is often “tacitly assumed”. There is a significant danger however in assuming that a state of affairs exists without allowing such an assumption to be placed on the record. It is unfair to the claimant because it leaves him or her without an apparent reason for the loss and it leads to uncertainty as to the application of the other factors as their relative weight would inevitably be questioned.
There is also a significant concern about the effect that such a factor has on the claimant. Perversely it invokes a problem of contract law where there are quite regularly two innocent parties with the law having to decide which must suffer. In these cases on the one side you have the injured claimant and on the other you have the interests of the public. While it may be to the benefit of the public for the claimant to have suffered it cannot be said to be in the interest of the claimant. Lunney also expresses this concern (page 147) and suggests that a remedy may be for compensation to be paid irrespective of fault. While this would avoid the technical issue it would still lead to payments being made which would inevitably have repercussions including, potentially, higher insurance premiums or higher taxes depending on whether the defendant is a private or public entity. Such a remedy would also lead to more subtle consequences including, in cases involving doctors, defensive medicine and it is possible to envisage a fire brigade, taking the case of Watt described above, spending more time making sure that every safety check list is complied with that they spend putting out fires in emergencies. Such a situation cannot be desirable.
Realistically there is no simple answer to this concern. What can be said is that it is a factor that is out of place as it does not go strictly to the question of whether or not the defendant breached their duties. It could be argued that the question of public policy should be an entirely separate and distinct issue that could be considered after the other hurdles have been cleared.
The final consideration must be the perspective of the analysis. The evaluation of this must be reasonably positive as it is certainly logical for a defendant to be judged according to the standards of the reasonable persona and it is also logical that the court consider what it would have been reasonable for the defendant to do by ways of preventative cure at the time of the incident rather than at the time of the hearing. The one criticism that can be levelled is at the decision of Nettleship . It is certainly arguable that someone who is incapable of reaching the standards of care that are required should not be held liable when those standards are not reached.
The difficulty though arises when an alternative is sought because apart from exempting the incompetent from liability, a policy that could certainly be attacked as being unjust, there does not appear to be another way of dealing with this part of breach of duty. As such, as unsatisfactory as it may appear, the current tests must be considered to be appropriate in the circumstances. If there is a scope for remedy then it should be through other avenues, for example a policy decision to require an individual to attain that standard before being permitted to engage in that activity. Indeed in the case of Nettleship it could be argued that to allow a learner to drive without expert supervision is an activity that should be limited by law. This is not the function though of the courts in evaluating duty of care situations.
In assessing whether the current rules are satisfactory consideration must always be had to the alternative and given the difficulty of balancing clear rules with the factual centre of each case and the number of individual characteristics that appear, the logical conclusion is that while not perfect, the current rules meet the goals and aims in a manner that is satisfactory if not complete. The area of law is n ever-expanding one and as such has the major advantage of being able to retain a significant degree of fluidity and can adapt to new situations and a relatively fast rate rather than stagnating over past inaccuracies.
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781
Bolitho v City & Hackney Health Authority  AC 232
Bolton v Stone  AC 850
Donaghue v Stevenson  AC 562
Latimer v AEC Ltd.  AC 643
Maynard v Midlands Regional Health Authority  1 WLR 634
Nettleship v Weston 2 QB 691
Paris v Stepney Borough Council  AC 367
Roe v Minister of Health  2 QB 66
Watt v Hertfordshire County Council  1 WLR 835
‘Tort Law’ R Bagshaw/N McBride
Published by Longman Press
‘Introduction to Law’ P Harris
Published by Longman Press
‘Tort Law Text and Materials’ M Lunney/K Oliphant
Published by Oxford University Press
‘Tort Law’ F Quinn/C Elliott
Published by Longman Press
‘Establishing Breach of Duty’
Ed. L.M. 2005, Feb, 5-9
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