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Breach of duty

Previous: Financial loss

Although we spend a long time looking at whether a duty exists, in the majority of tort claims, precedent answers this question. Therefore, given that there is a duty, how do we show that this duty has been breached?

The standard of breach

It is commonplace in tort law to talk about ‘the reasonable man’. Regarding breach of duty, the test is no different. But who or what is the reasonable man? Blyth v Birmingham Waterworks [1856] talked about the concept as follows:

Negligence 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 doesn’t really answer the question though. In Glasgow Corp v Muir [1943], it was said that the test is purely objective, and that idiosyncrasies should be ignored. In Hall v Brooklands Auto Club [1933], the reasonable man is apparently required to carry out certain tasks, namely that they are to commute on the London underground. Perhaps we should take this description which a pinch of salt.

A final point to note here is that as women are known to the law (yes, really!), we should now refer to the ‘reasonable person’, rather than the ‘reasonable man’.

Skill and experience

The reasonable professional

Where someone claims to have a certain skill or experience in a matter, the actions they take within that capacity must be taken with the care of the reasonable professional. However, the difference between being negligent and being wrong must be distinguished. As was shown in the case of Whitehouse v Jordan [1981], there is no duty for a professional to be right, they may make the wrong decision and not be liable. However they must have taken steps which the reasonable professional would have done so in the situation. This was also confirmed in the case of Moy v Pettman Smith [2005], where a barrister could have advised for a better settlement. The law allows for differing opinions and will not impose liability on such a ground.

The standard of the reasonable professional

To complicate the matter further, the rank or knowledge of the individual professional is usually irrelevant. Although the law suggests that the a city consultant should be more skilful than a rural GP; according to Wilsher v Essex AHA [1987], a junior doctor is expected to perform at the standard of the reasonable doctor, not that of the reasonable trainee doctor. Similarly, in Shakoor v Situ [2001], a herbal remedies expert was expected to take into account general medical practices too. Luckily for the defendant, in this case general medicine would not have helped. In Vowles v Evans [2003], although a trainee referee could not be expected to have the skill level of a fully trained referee, there could still be liability.

Furthermore, there can be liability in a non-delegable duty, as was the case in Woodland v Essex CC, despite the fact the duty could be said to have been a contractor’s.

Parents and children

Generally, parents have no direct responsibility for their children’s actions, unless they have assumed direct responsibility. As such, if one intends to sue a child, the ‘reasonable child’ test must be followed.

In McHale v Watson [1966, Australia], it was not deemed reasonable for a 9 year old child to sue a 12 year old, who’s dart had glanced off a post and child the claimant. The 12 years old was acting as a reasonable child. Similarly, in both Mullin v Richards [1998] and Blake v Galloway [2004], 15 year old children were not expected to behave as reasonable adults.

An exception to this can be found in Zanner v Zanner [2010, New Zealand] where an 11 year old child was found to be negligent when driving a car and running over her mother.

Incapacity

Usually, incapacity is ignored in breach of duty questions, unless it is through no fault of the defendant. This is illustrated by Roberts v Ramsbottom [1980], where suffering from a stroke while driving was no defence to damage caused by the driver.

However, there can be exceptions to the rule. If a driver is unaware of his incapacity, as was the case in Mansfield v Weetabix [1998], there could be no liability. Similarly, in Buckley v Smith Transport [1946], there was no liability assumed by a lorry driver who believed that his lorry was being remotely controlled.

Believing that you are trying to escape from murderers (Adamson v Motor Vehicle Insurance Trust [1956, Australia]) or are simply being insane (Carrier v Bonham [2002, Australia]) will not negative liability.

Claimant’s knowledge of incapacity

If the claimant knows of the defendant’s incapacity, should they be expected to be more careful around the defendant? Apparently not. In Nettleship v Weston [1971], it was ruled that there is no such thing as a reasonable learner driver; the learner is expected to take the care of a reasonable driver, for example. Although this idea was reversed in Cook v Cook [1986, Australia], it was re-affirmed in Imbree v McNeilly [2008, Australia].

Conclusion

Therefore it does seem after all that the test ruled in Glasgow Corp v Muir [1943] was the most accurate. Anyone who had some degree of control is expected to behave as a reasonable person in that position. No exceptions are made for an individual’s state, trainee or not, learner driver or not, or known about or not.

Next: Causation

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