Does the Issue on Breach of Duty Favor Both Parties?

LAW
OF TORT

The scope of this text is to
critically assess if the issue on breach of duty sufficiently favors both
parties or if indeed time has come for further reforms to be put in place. This
essay compares breach of duty from the time it was first applied in past cases,
the cases that took place not so long after it was first established, to how it
has evolved with time to cater for the needs of modern day cases. It
particularly analyzes the lack of skill and experience as a threshold in
judging the defendant in a court of law. 
In my view, the current position on breach of duty is sufficiently fair
although not fully, to both parties because it is based on the balance of
probabilities thus in certain scenarios the defendant may be favored while in others,
the claimant may be favored. It is not fully fair to both parties as the task
of proving that the defendant was negligent may be a difficult task to the
claimant because courts take a number of factors into account; nature of
activity in question, cost of risk avoidance, likelihood of harm arising from
the activity in question and the extent of harm. ^[1]

Breach of Duty is a major principle
of negligence which mainly questions if the defendant was careless by not
meeting the required minimum standards of care applicable to him. Negligence as
defined by Alderson B in Blyth v
Birmingham Waterworks Co (1865) 11 Ex 781 at 784: “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.” This has since then been
applied in cases when establishing what negligence is and the standard of care
expected. To establish if indeed the defendant breached his duty of care and is
negligent, a two-staged approach is followed. Firstly, what standard of care
was the defendant expected to reach and secondly whether the defendant reached
the standard of care?

The standard of care
includes that of the reasonable man: the ordinary citizen and not the defendant
himself. This has been applied in cases such as: McFarlane v Tayside Health Board (1999) 3 WLR 1301by Lord Steyn
who describes the reasonable person as ‘commuters on the London Underground’.  It is objective with exceptions such as inexperienced
defendants who are held to the level of skill with that of experienced
defendants in the field in question.[2]This is also applied in Glasgow
Corp v Muir [1943] AC 448. Thirdly, specialist defendants such as doctors
or accountants: the standard of care is that of a reasonably competent person
in the profession at any particular time.[3]Fourthly, the standard of care varies to cater for special circumstances.[4]In the case of Blyth v Birmingham
Waterworks Co, which gave rise to the idea of the ‘reasonable man’, the claimant
sues the water company as being liable for causing damages to his house by failing
to meet the standard of care owed to him. He argues that due to the defendant’s
lack of responsibility to remove the accumulations of ice from the fire-plug,
the company was negligent and breached their duty of care. The jury found no
breach of duty on the part of Birmingham Waterworks Company, as they did not
see it fit to hold them liable for an accident that was not foreseeable.
Alderson B, stated that: “the defendants had provided against such frosts as
experience would have led them, acting prudently, to provide against; and they
are not guilty of negligence and breach of duty, because their precautions
proved insufficient against the effects of the extreme severity of the frost of
1855, which penetrated to a greater depth than any which ordinarily occurs south
of the polar regions.” From this case, it is evident that breach of duty could
only occur if, unintentionally, the defendant omitted to do that which a
reasonable person would have done, or did that which a person taking reasonable
precautions would not have done the risk in question. In my view, the position
of breach of duty at the time was not fair to both parties as it took into
consideration if the risk involved was foreseeable to the defendant and whether
a reasonable man would do the same given the same circumstances, ignoring the
damages accrued to the claimant.

Professional men and women are
usually governed by the standard of care of a normal person and are subject to exemption
if he can show that his practice was according to a respectable body of opinion
in his field.[5]
This simply meant that, the court would not judge the defendant based on
expected future developments in knowledge but by the state of knowledge of the
normal professional at the time of the alleged breach of duty. This is applied
in Roe v Ministry of Health, ^[6]
whereby each of the claimants’ was paralyzed when a contaminated aesthetic was
administered to them during an operation. The cause of the contamination were
tiny cracks in the ampoules in the liquid anesthetic. Lord Denning states that
it was not negligent for the defendant at that time because the anesthetist
could not have known that there were tiny cracks due to lack of knowledge and
experience: we must not look at the 1947 accident with 1954 spectacles. The
court thereby dismissed the claimant’s appeal. From this case we see that the
position on breach of duty in the early 1950s was not fair to both parties as
it favors the defendant on claims that he could not have done anything to
prevent the accident involved. This is because the defendant acted according to
a respectable body of opinion in the medical field. On the other hand, the
claimant is not compensated for being paralyzed as a result of the defendant’s
lack of knowledge at that particular time. However, in 1971 in Nettleship v Weston, the view that
standards of care should vary was brought into question but it was later
dismissed by Lord Denning who believed that the standard of care should still
be that of the skilled and experienced driver.The claimant’s appeal
is therefore allowed and both parties are judged fairly.

However, in 1971 in Nettleship v Weston, the view that
standards of care should vary was brought into question but it was later
dismissed by Lord Denning who believed that the standard of care should still
be that of the skilled and experienced driver.The claimant’s appeal
is therefore allowed and both parties are judged fairly. Both Lord Denning and
Salmon LJ accepted that the share of responsibility made by the trial judge and
reduced damages by one half because of the claimant’s contributory negligence.[7] From
the above cases, it is quite clear that in establishing the standards of care applicable
to professional defendants, there has been a series of evolution from 1938 in Philips v William Whiteley[8]where the ruling favored the defendant to Nettleship v Weston in recent
past whereby the ruling was quite fair to both parties.   

In establishing whether the standard
of care was reached, the claimant is expected to prove breach of duty in
relation to the balance of probabilities. In the past, courts used to be mainly
pro-defendant especially in medical malpractices such as those involving the
concept of ‘informed consent’ which have then led the courts to move towards
the claimant’s side due to the growth of human rights law.[9] In
Civil
Evidence Act 1968 s, 11: it states that the presumption of liability may be as
a result of the claimant’s proof of conviction. This is applied in Kralj v McGrath and St. Theresa’s Hospital.[10] Moreover, the claimant is
expected to prove that the damages caused by the defendant was in the exclusive
control of the defendant. This concept was brought about by the res
ipsa loquitur
principle which was applied in scenarios where there was no exact cause of
damage or injury that can be proved by the claimant. For example in Scott v London and St. Katherine’s Dock.[11]
The trial judge therefore ruled in favor of the defendant because there was no
proof that he had been negligent even though circumstances suggested that there
had been some element of negligence. However, it has been argued that this
principle has the effect of reversing the burden of proof because it is almost
always impossible for the defendant to explain exactly what happened. [12]In the case of Ward v Tesco Stores[13]for example, the ruling is in favor of
the claimant as the defendant could not really explain how long the yoghurt and
therefore had no other evidence to successfully defend the claim.

From these cases, it is evident
that in the past, different cases favored the different parties due to the res ipsa loquitur principle which has
since then been declared unnecessary after the Consumer Protection Act 1987.
This is mainly because the application of this principle usually eases the
claimant’s difficulties in proving breach of duty, placing the defendant in a
difficult position in defending the claim that he breached his duty of care. [14]Consequently, the position on breach of duty was not sufficiently fair to
both parties.

However, certain alterations have
been implemented in a way to suit modern cases. Establishing breach of duty for
skilled and experienced personnel is not always a straightforward matter in a
court of law.[15]In the case of Vowles v Evans,
^[16] the
judge brings in an argument of whether in sporting skill, the degree of skill
to be expected of a referee depends on his grade or that of the match he is
refereeing. [17]He later states that a volunteer called to stand in when the nominated
referee failed to show up, could not reasonably be expected to show the level
of skill of one who holds himself out as a referee or to even be fully
conversant with the game at hand. This case differs with Nettleship v Weston as
it introduces a proposition that there is no breach of duty when a volunteer
fails to show the standard of care to that of an experienced referee. Consequently,
an inexperienced defendant and an experienced defendant will be judged
differently in a court of law. Furthermore, in James v Butler, ^[18]  the Court of Appeal introduced a
different view when judging a defendant for breach of duty based on lack of
special skills: the standard of care should be related to the type of activity
rather than the category of the person who was carrying out that activity. In
addition to that, the court also ruled that it was not reasonable to have
expected the claimant to have checked for permission before entering the
conservatory area since it would have appeared to him that the area was safe. This
shows, that the current position of breach although not fully, is slowly
transitioning towards being sufficiently fair both parties.

In conclusion, based on the
different cases discussed and evidence from case law, professional negligence
cases which do not involve clinical negligence, the courts have been inclined
towards terming it as breach of duty in a practice which is commonly adopted
and followed by professional people carrying out their usual activities.[19]Courts have ruled that if a profession has different schools of thoughts,
a professional person must be judged against the lowest acceptable standard.
This might have been reflected in Hyde v
JD Williams and Co.[20]In my view, this essay proves that the current position on breach of duty
is sufficiently fair to both parties as courts of law have made it more
possible for the claimant to prove breach of duty and for the defendants to
defend their claim.

BIBLIOGRAPHY

• Blyth v Birmingham Waterworks Co (1865) 11 Ex 781 at 784
• Bolam v Freirn Hospital Management Committee [1958] 1 WLR 582
• Deakin S, Johnston A and Markesinis B, Markesinis and Deakin’s: Tort Law (6^th edn, OUP 2008)
• Glasgow Corp v Muir [1943] AC 448
• Harpwood V, Modern Tort Law (7^th edn, Routledge-Cavendish 2009)
• House of Lords, ‘Judgments – Macfarlane and Another v. Tayside Health Board’< https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd991125/macfar-1.htm> accessed 5^th November, 2018
• Hyde v JD Williams and Co [2001] BLR 99
• James v Butler [2005] EWCA Civ 1014
• Kralj v McGrath and St. Theresa’s Hospital [1986] 1 All ER 54
• Lunney M and Oliphant K, Tort Law: Text and Materials (5^th edn, OUP 2013)
• Matthews M, Morgan J and O’Cinneide C, Hepple and Mathews: Tort Cases and Materials (6^th edn Oxford University Press 2009)
• McFarlane v Tayside Health Board (1999) 3 WLR 1301
• Nettleship v Weston [1971] 2 QB 691
• Philips v William Whiteley [1938] 1 All ER 566
• Roe v Ministry of Health [1954] 2 QB 66
• Scott v London and St. Katherine’s Dock [1865] 3 H&C 596
• Stone J and Matthews J, Complementary Medicine and the Law (OUP 1996)
• Vowles v Evans [2003] 1 WLR 1607
• Ward v Tesco Stores [1976] 1 WLR 810
• Wooldridge v Sumner [1963] 2 QB 43

[1] Martin
Matthews, Jonathan Morgan and Colm O’Cinneide, Hepple and Mathews: Tort
Cases and Materials (6^th edn Oxford University Press 2009) 29

[2] Nettleship v Weston [1971] 2 QB 691

[3] Bolam v Freirn Hospital Management Committee
[1958] 1 WLR 582

[4] Wooldridge v Sumner [1963] 2 QB 43

[5] (n3)
586

[6] [1954]
2 QB 66

[7] [1971]
3 All ER 581

[8] [1938]
1 All ER 566

[9] Simon
Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s: Tort Law (6^th edn, OUP 2008)232

[10] [1986]
1 All ER 54

[11] [1865]
3 H&C 596

[12] Vivienne
Harpwood, Modern Tort Law (7^th
edn, Routledge-Cavendish 2009) 159

[13] [1976]
1 WLR 810

[14](n12)
159

[15] Julie
Stone and Joan Matthews, Complementary
Medicine and the Law (OUP 1996)167-168

[16] [2003]
1 WLR 1607, [28]

[17] Mark
Lunney and Ken Oliphant, Tort Law: Text
and Materials (5^th edn, OUP 2013) 188

[18] [2005]
EWCA Civ 1014

[19] (n12)
155

[20]  [2001] BLR 99