Ben met his friend Olu, and they agreed they both needed a drink. They went to the pub, where Olu bought the drinks and Ben, after several pints, offered Olu a lift home. On the journey home, Ben collided with Kimberley, a 6-year-old who was trying to cross the street. The collision caused Olu to fly through the windscreen, and pushed Kimberley into the path of an oncoming car being driven by Ernie, aged 82. Kimberley sustained serious internal injuries. An ambulance was summoned to take Olu, Kimberley, and Ernie to hospital. Greta, the ambulance dispatcher, having taken the call, did not dispatch an ambulance for 15 vital minutes, while she finished the magazine she had been reading when the call came. By the time the ambulance arrived, Olu had died. At the hospital, Kimberley’s injuries were misdiagnosed by Mary, a junior doctor who was attending in Accident & Emergency for the first time. Had the nature of her injuries been correctly assessed in A&E, Kimberley would have had a 40 per cent chance of full recovery. Kimberley is now paraplegic.
Analyse the aspects of this scenario which concern breach of duty
- This scenario is intended to give you the opportunity to explore the three key elements of the tort of negligence in succession: duty of care, breach of duty and causation of damage. All three elements are required for a successful action. Here, refer to ’breach of duty’ in Chapter 3.
- You must identify each possible cause of action in negligence in the scenario and in each case, when duty of care has been established (see above), whether or not the expected duty of care has been fulfilled or breached.
- Be sure to consider defences
The issue of breach of duty enables us to determine whether or not the defendant has been negligent. First identify the relevant standard of care and then assess, on a factual basis, whether or not the defendant has reached that standard in the circumstances. The general standard of care is that of the ‘reasonable man’ (Glasgow Corporation v Muir).
- Olu’s estate v Ben – Ben is expected to behave as a reasonable driver (Nettleship v Weston). The fact that Ben drove, having consumed several pints, implies that he did not behave as a reasonable man. The Civil Evidence Act 1968 may be relevant here.
- Ernie v Ben – If Ernie has sustained physical injury or damage to his car, as assessment of Ben’s possible negligence towards Ernie will follow a similar pattern to that of Olu v Ben.
- Olu’s estate v Greta – Greta may or may not be regarded as a professional but in any case will be expected to behave reasonably. In the circumstances, given the balancing exercise (cost of running the risk vs that of avoiding the risk) and the extreme consequences of negligence, it would appear that Greta has fallen below the required standard.
- Kimberley v Ben - Ben’s drink-driving has been discussed above. We also must consider Kimberley’s behaviour in terms of contributory negligence. The standard of care is laid down in Mullin v Richards. A child of 6 is unlikely to be regarded as contributorily negligent. Jackson v Murray may be relevant.
- Kimberley v Ernie – we know very little about Ernie’s behaviour in the scenario. However old age does not bring with it any variation on the expected standard of care of the reasonable man. It would have to be established whether Ernie’s driving was reasonable in the circumstances.
- Kimberley v Mary – Mary was expected to perform according to the standard of the reasonable junior doctor - Wilsher v Essex AHA. That it is her first day does not diminish that standard. The facts of Mary’s behaviour would need to be assessed to determine whether she reached that standard. Bolam v Friern and Bolitho v City and Hackney AHA will be relevant.
Explain the ‘balancing process’ whereby the courts determine whether or not the standard of care has been met, with relevant case illustrations. To what extent do considerations of policy apply?
- The cost of running the risk (likelihood and severity of injury) V Cost of avoiding the risk (defendant’s purpose and practicability of precautions) must be analysed for each of the causes of action.
- Policy input: cases indicate that subjective judicial valuations may be made on any of the ‘balancing’ factors.
The origins of this approach to determining whether the standard of care has been reached originated with Learned Hand in 1947. How would the reasonable man behave in these circumstances? In tort law, this is can only be considered retrospectively. Running a certain risk comprises the likelihood of injury and the severity of the injury, should it occur. In Wagon Mound 2, the former was moderate but the latter was high, thereby arguing against running the risk. Avoiding a risk comprises the objective of the defendant and the ease of taking precautions. In Wagon Mound 2 both were evaluated as low – arguing in favour of avoiding the risk. The court concluded that, on balance, breach had occurred. Bolton v Stone, Latimer v AEC and many other cases illustrate the same point.
These elements are not quantifiable and thus there is subjectivity in the process. Bolton v Stone provides an excellent example. Policy was also evident here in the preference shown by of some of the Law Lords for preserving village cricket.