Essay: Breach of duty of care – personal safety

Introduction
Breach of duty is established where the action or inaction of a person is appeared to have fallen below a reasonable standard of behaviour demanded by law. The demand of standard of care is naturally higher when personal safety is at stake. Breach of this duty resulting in injury to or the death affords a cause of action against who commit in tort of negligence.
The appellant JOHN MARCUS appealed against the lower court for the decision that the respondent MIXFORD UNIVERSITY was not in breach of its duty owed to him. The respondent was vicarious liable to his employee’s omission. Derek, the estate manager employed to ensure the ceremony could properly commence. Mr. JOHN MARCUS was suffered a severe asthma attack from excessive smoke inhalation in the accident.
Two questions will be considered to establish breach of duty: a person’s conduct within a particular setting is determined by law and the question whether the person has fallen below that standard is a question of fact.
Standard of Care
The reasonable man is a judicial construct which the courts seeks to determine the reasonable conduct in the circumstances of the particular case. Alderson Baron in Blyth v Birmingham Waterwork Co described breach of duty as “something that the reasonable man would not have done, or has omitted to do something that the reasonable man would have done. ” The reasonable man is eliminated from the personal idiosyncrasies of the particular person whose conduct in question , the standard he owed is the standard of an ordinary prudent person in a given situation . The reasonableness of the standard of care may vary due to all circumstances. A child is expected to conform to the standard of an ordinary child of his age and maturity but not the standard of expected of an adult , a skilled person claimed possessing special skills is expected to exercise the ordinary skills of an ordinary competent man exercising that particular art, but not the highest expert skill .
Objectivity
Reasonable man is an objective test . In Nettleship v Weston , the standard of care of a learner driver was measured objectively by the care to be expected on an experienced, skilled and careful driver. Although the claimant knew the defendant did not possess the degree of skill , the court confirmed the objective standard should not “be varied according to someone’s knowledge of another’s skill in order to avoid endless confusion and injustice” . Objectivity does not take into account the best effort according to defendant’s education, experience, health and so on, as long as the best falls below the standard of care expected of the reasonable man, the duty is breached.
The reasonable man was arguably taken to extreme. In Roberts v Ramsbottom , it ignored defendant’s incapacity. Where the defendant driver’s incapacity was self-inflicted and ought to know accident may occur before driving, he was held to owe the same standard as a competent driver. Automatism was not accepted by the Court. Until recently, Mansfield v Weetabix Limited distinguished from Roberts where the court allowed a lower standard of reasonableness for “a reasonably competent driver unaware that he is, or may be, suffering from a condition that impairs his ability to drive. ” The reasonableness is not tailored to the actor but to the act according to all circumstances. Therefore, a junior doctor was held to owe the same standard of care as a competent doctor as his post disregarding his rank and experience . A jeweller piercing an ear was not required to exhibit the same standard care as a surgeon , but the standard was measured by the type of work he did.
McNair J in Bolam v Friern Hospital Management Committee introduced Bolam test, distinguished the ordinary prudent person and the professional skilled person. Negligence on the part of a professional placed in the person is determined by comparing his conduct with another professional placed in the same or similar situation . Adams v Rhymney Valley District Council extended the applicability of the Bolam test to all other profession. Bolam test accepts the proper conduct set in accordance with the opinion of the body of professionals of that particular profession, but this is not absolute. The court reserves the discretion to reject a professional opinion if it is satisfied that the opinion to be lacking a demonstration of professional practice , illogical or no special skill is necessary in order to assess a negligent conduct .
The law judges a person by the circumstances in which he is placed and the post that he occupied, the duty is not tailored to the actor but to the act . There is a whole series of rules, developed through of case law, setting out the qualities and conduct, expected of the defendant . The objective test works well in most situation, although it does not take the defendant’s weakness or inexperience into account which could have prevented the defendant from conforming to the objective standard.
Setting Standard of Care
In Tomlinson v Congleton Borough Council , the court suggested the factors required to assess the reasonableness of standard of care. Namely the likelihood of the risk of injury and the seriousness of the injury balance against the social value of the activity and the cost of precaution .
Likelihood of the risk of injury
The likelihood of risk of injury refers to the real possibility of harm happening or a damage arising due to defendant’s action or inaction. The defendant may be justified in taking no precaution if the risk of harm is very small . In Bolton v Stone , the risk of harm was considered small because during a period of 30 years only six times a cricket ball had been struck out a 17 foots high fence. Whereas a cricket ball has crossed the ground eight or nine times each season and damaged the claimant’s property the risk of damage from cricket ball cannot be regarded as small . Lord Reid in The Wagon Mound (No.2) discussed Bolton and stated “the general principle did not alter that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man, but that decision did recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. ” But what was excusable ignorance yesterday may become negligence today , as per Lord Denning reminded: “we must not look at the 1947 accident with 1954 spectacles .”The courts will not apply the standards of a later date.
Gravity of injury
Gravity of injury refers to the situation that the risk of accident would cause serious injury to the claimant, even if the chance of an injury occurring is low or due to failure to take precautions is remote, the duty is breached. In Paris v Stepney Borough Council , the employer was imposed higher standard of care to a one-eyed workman than a person with normal sight in both eyes since he knew and ought to know the seriousness of harm caused to him would have greater. Common practice may be evidence of the standard of care required, but it does not necessarily equal to the standard of care of an ordinary prudent person. Lord Simonds and Lord Morton of Henryton however disagreed to impose higher standard of duty because on the basis that the risk to the plaintiff was not materially greater than the other workers engaged on the same risk, such an accident would be serious in its consequences to any worker. The House of Lord reflected a broader proposition that the content of the defendant’s duty of care must be tailored to the known, or reasonably foreseeable, characteristics of the individual claimant. In respect to gravity of injury, the issues arise not only where the claimant is at risk of more serious injury than other potential victims of the tort, but also where the risk is more likely to eventuate. This is also a question of the foreseeability or probability of harm.
Cost of Precaution
The cost of precaution to avoid accident is a private cost imposed on the particular individual. The law recognizes many risks can be reduced or eliminated by taking precaution without incurring enormous costs. Public authorities, unlike enterprises and individual who does have control of their own budgets and resources, are less likely to be imposed a higher standard of care due to lack of resource . In respect of private individual and commercial enterprises, whoever decided to start an activity must bring to it the means necessary to safely run it . But it does not mean to impose stringent precautions. In Latimer v AEC Limited , the defendant whose factory flooded due to an exceptional storm, as the defendant did all reasonable steps to prevent minor injuries. The defendant was held only need to take reasonable precautions to minimise foreseeable risk. No greater expense to eliminate any possible risk was required.
Social Value of the activity
The function of law of tort does not intent to stamp out socially desirable activities, this principle has been enshrined in the Compensation Act 2006 . The courts must determine the breach of duty by balancing risk against utility of the activity in question . A distinction is made between commercial activities and those that concern public welfare. In Watt v Hertfordshire County Council , as the utility of activity is trying to save the life, the defendant’s conduct was justified because saving a life outweighed the need to take precaution. However, activity provide no social or education value but significantly increase the risk of injury to a participant is not acceptable . Therefore, activities with social value are not definitely acceptable.
Proof of Breach of Duty
In some exceptional situations, the claimant faces evidential difficulties to establish negligence but the negligence can be evidence of careless, through the doctrine of Res Ipsa Loquitur, the court may infer negligence from the circumstances in which the accident or injury took place, redress the balance of power between the claimant and defendant.
Erle CJ in Soctt v London and St. Katherine Docks Co laid down the requirement of Res Ipsa Loquitur, firstly, the defendant needs to have control of the thing that cased the injury. Secondly, the evidence taken as a whole points in the direction of the defendant’s negligence and where the defendant is unable to explain how the accident occurred, they will be liable unless the defendant can show they exercised all reasonable care in circumstances .
Otherwise, on the balance of probabilities, the burden is on the claimant to prove the defendant has breached of duty.
Balancing
Derek did not claim himself professional skilled, nor can the act to ensure the exits be functional does not require professional skill. The standard of care excepted to him would be an ordinary prudent person. The ceremony was designed with two exits for emergency situation. As an ordinary prudent person, there is no excuse that he could not know and ought not to know any breakout may occur. Perhaps fire accidents are unlikely to occur, the seriousness of injury can be reasonably foresee. The fire exit was blocked by un-installed equipment and furniture, it is not fall within the common practice or lack of resources to empty the fire exit is acceptable. Minimal financial or time cost may sufficient for precaution. Considering the ceremony is a socially desirable activity, but John is an asthmatic and suffered greater damages other than other victims. As a personal safety is at stake, the appeal is allowed.