Breach of Duty Evaluation

• Summary of the law

  The concept of breach of duty was set out by Alderson B in Blyth v Birmingham Waterworks - the standard expected is of a reasonable person doing the same job as the defendant.

  There are two main areas.
• Characteristics of the defendant

  Level of skill test - the higher the level of skill in a job, the higher the standard expected. Wells v Cooper.

  Standard of professionals - judged against fellow professionals, where they using a known and recognised procedure? Bolam v Friern Barnet Hospital.

  Standard of learners - learners must meet standard of a reasonable person in the same job. Nettleship v Weston.

  Standard of children - A child is judged against a reasonable child of the same age. Mullins v Richards.
• Risk factors to the claimant

  Magnitude risk - the higher the risk, the more they have to do to prevent it. Paris v Stephney BC.

  Cost of prevention - the higher the risk, the less they have to do to prevent it. Bolton v Stone.

  Practicality of prevention - the easier it is to prevent, the more a defendant must do to prevent it happening. Latimer v AEC
• Risk factors

  Common practice - If D follows common practice then a breach is less likely. Wilson v Sacred Heart Primary School.

  Known risk test - You must do more to prevent known risks. Roe v Ministry of Health.

  Social Benefit test - if it has a social benefit then a breach is less likely. Watt v Hertfordshire.
• Criticism 1 - Breach places an unfair burden on the claimant

  Breach of duty is the fault element of negligence. Most torts are strict liability. Negligence is a fault based tort (relies on proving blame) that enforces liability. Not only will the claimant have to prove that the defendant owed a duty of care and had caused damage, but they will also have to prove they breached that duty of care by falling below the standard of care expected.
• This adds an extra burden to the claimant in proving their case. However, the test for proving this is objective which means that a general standard has been established for all defendants, but it can lead to very high levels of care (Doctors)to avoid liability.

  Evidence 1 - The decision in nettleship v weston required the defendant to meet the standard of a reasonable driver even though she hadnt passed her driving test. The use of an objective test makes it easier for the claimant to prove.
• Criticism 2 - The risk factor tests seem to favour the defendant

  One of the biggest areas of consideration for breach of duty, is the risk posed to the claimant by the defendants failing to meet the standard of the reasonable person in this job. However some of these tests seem designed to reduce the burden on the defendant and leave the claimant with few real remedies even if there is a clear breach in the case.
• Evidence 2 - In Bolton v Stone, the court held that even though there was harm caused to the claimant, as the defendant had put up fences, this meant there was no breach as the cost of prevention was too high. Whilst this is a practical decision, it undermines the legitimacy of a claim if the cost outweighs the risk, it may be seen as letting a defendant off the hook due to financial reasons, rather than what is just in the case.
• Evaluate 2 - In comparison in Haley v L.E.B the defendant was found liable for not putting up temporary signs and fences when a blind claimant fell into a hole. Here the cost was not seen as an issue due to the vulnerability of the claimant. This is an entirely justified decision, but it creates a conflicting position in which cost can be outweighed by the vulnerability of a claimant, which a defendant may not know about until its too late.
• Evaluation 2 continued

  In Latimer v AEC Ltd the defendant was not liable even though they had allowed staff to work in part of the factory which was known to be unsafe. This was because the defendant has spent money making some of the factory safe. Again this is a practical decision, but it is unfair on the claimant as an employer is allowed to take the bare minimum safety measures and they have done all they practically can to reduce the risk.
• Criticism 3 - The cost of bringing and losing a case

  In most negligence claims the cost of proving a breach of duty which caused recognised damage can be substantial for the claimant to bring and for the defendant to defend against. This expense is often too much or Claimant or defendant and the courts have accepted that for many individuals, the cost of losing a case will put them out of business (Smith v Eric Bush).
• Evidence 3 - The claimant will have to prove his claim and often a medical report will need to be obtained. In many cases an expert's report as to how the incident occurred may be required and this all adds to the cost. These costs could deter a potential claimant from bringing a court action, despite them having a strong case. In many cases a defendant with more influence and money will try to use this to deter action against them.
• Evaluation 3 - The parties involved often use lawyers to work on their cases. Initially the lawyers may try and settle the claim before it goes to court but if they cant they will need to commence proceedings in court. This involvement of lawyers will add to the costs and will lead to delay for the client.
• Conclusion

  The current laws on breach have been developed over the years in a piecemeal way, the initial developments were intended to broaden the category of people who could receive compensation and to achieve justice for claimants. The tests developed for breach of duty in particular were designed to limit undeserving claims and provide a clear standard for judges in deciding when there has been a breach of duty and the extent of this.
• Conclusion continued

  Unfortunately this hasnt been entirely successful and the result of so many tests has been that the process has become expensive, slow and confrontational leading to criticism of the current system. The claims culture that exists within the uk has also been subject to criticism.

  Reforms to remove the need to prove fault have been suggested but are unlikely to be implemented. The improvements necessary to improve the current system will require an over haul of the current slow, expensive, adversarial litigation process.