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FACTORS DETERMINING NEGLIGENCE BREACH OF DUTY IN LAW

FACTORS DETERMINING NEGLIGENCE BREACH OF DUTY IN LAW




The reasonable person is a fictional character and the
decision as to negligence is a value judgement made by the judge. One way of
establishing negligence might be to show a failure to conform to standard
practice. But it would be dangerous to use this as an infallible guideline and
would abdicate the court’s responsibility. If all drivers regularly break the
speed limit on a certain road, a judge is unlikely to accept this fact as
evidence that the defendant was not negligent. The test is how the defendant
ought to have behaved. Similar reasoning might be applied to a factory owner
who speeds up their production line to a point where it is dangerous for their
employees and argues that all their competitors do the same. In some areas
standard practice will carry great weight and in cases of medical negligence
conformity with standard practice will nearly always result in a finding of no
negligence.  This is also the case in
emerging areas of negligence such as the liability of local government in
educational special needs cases. (Carty v Croydon London Borough Council [2005]
2 All ER 517.) Outside of the medical area, the courts have been less eager to
allow common practice to defeat an action. In Lloyds Bank v Savory [1933] AC
201 it was not a defence that the defendants had followed general banking
practice in their procedures for handling cheques. In professional negligence
cases, provided the defendant has complied with the required standard for that
profession, there is no negligence. The court will ask what is expected of a
professional according to the expertise that he holds and not demand
unrealistic standards of skill and knowledge.



Luxmoore-May
v Messenger May Baverstock [1990] 1 All ER 1067
 It was alleged
that the defendant auctioneers had negligently failed to identify two paintings
as those of a famous painter. They were sold at auction for £840 and a few
months later sold again for £88,000. The Court of Appeal likened the skill to
be expected of a provincial auctioneer to that of a general medical practitioner.
On the facts, the defendants had not been negligent, as differing views on the
painter could have been held by experts. The auctioneer’s duty was to do his
job with honesty and due diligence. Slade LJ: I am of the opinion that the
judge . . . demanded too high a standard of skill on the part of the defendants
and of Mr Thomas, in concluding that no competent valuer could have missed the
signs of Stubbs [a noted eighteenth-century sporting artist] potential. In my
judgment, the question whether the foxhound pictures had Stubbs potential . . .
was one [on] which competent valuers, and indeed competent dealers, could have
held widely differing views. It has not been argued that a valuation of £30 to
£40 would have been too low if these pictures were simply to be regarded as
objects to be hung on a wall without Stubbs potential. For these reasons, I am
of the opinion that negligence on the part of Mr Thomas has not been
established, and accordingly that negligence on the part of the defendants would
not have been established, even if Mrs Zarek, after taking Mr Thomas’s advice,
had taken no further advice in relation to the pictures.
(See
also Thomson v Christie Manson & Woods Ltd [2005] All ER (D) 176 (May).)

Failure to conform with standard practice is usually good evidence that the
defendant has been negligent, but this is not conclusive.
 Brown v Rolls-Royce Ltd [1960] 1 WLR 210
 The plaintiff
contracted dermatitis at work. The defendant employers had provided washing
facilities at work but did not supply a barrier cream which was supplied by
other employers in the same type of work. There was conflicting evidence as to
how effective this cream was. The plaintiff was unable to prove that if the
cream had been supplied she would not have suffered dermatitis. The defendants
were held not to have been negligent in failing to supply the cream. A judge is
likely to take a number of factors into account in determining negligence.
The
skill which the defendant professes to have
Where a person has held themselves out as having a
particular skill, they are required to show the skill normally possessed by
persons doing that work. A solicitor will be required to show the skill of the
average solicitor and a plumber that of the average plumber. The fact that that
person is in their first day in the job is irrelevant, as the test is
objective. The standard of care expected of a doctor was laid down in the
following case.
Bolam
v Friern Hospital Management Committee [1957] 2 All ER 118
The allegation was that a doctor had been negligent in
administering electro-convulsive therapy to a patient without a relaxant drug
or restraining convulsive movements. The plaintiff suffered a fractured jaw.
 McNair J:
 I must explain
what in law we mean by ‘negligence’. In the ordinary case which does not
involve any special skill, negligence in law means this: some failure to do
some act which a reasonable man in the circumstances would do, or doing some
act which a reasonable man in the circumstances would not do; and if that failure
or doing of that act results in injury, then there is a cause of action. How do
you test whether this act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of the man in the street. He
is the ordinary man. In one case it has been said that you judge it by the
conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But
where you get a situation which involves the use of some special skill or
competence, then the test whether there has been negligence or not is not the
test of the man on the top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not possess the highest
expert skill at the risk of being found negligent. It is well-established law
that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art. I do not think that I quarrel
much with any of the submissions in law which have been put before you by
counsel. Counsel for the plaintiff put it in this way, that in the case of a
medical man negligence means failure to act in accordance with the standards of
reasonably competent medical men at the time. That is a perfectly accurate
statement, as long as it is remembered that there may be one or more perfectly
proper standards; and if a medical man conforms with one of those proper
standards then he is not negligent. Counsel for the plaintiff was also right,
in my judgment, in saying: that a mere personal belief that a particular
technique is best is no defence unless that belief is based on reasonable
grounds. That again is unexceptionable.
On the facts, the defendant was found not liable, as he
had conformed with a practice which was approved by a responsible body of
medical opinion. The courts therefore allowed the medical profession to set
their own standard. A doctor accused of negligence by a patient can defend
themselves by showing that what they did was accepted practice, provided that
practice was approved by responsible opinion in the medical profession.
Bolitho
v City and Hackney Health Authority [1997] 3 WLR 1151
A two-year-old with croup died after a sudden
respiratory crisis. The defendant doctor urgently summoned by a nurse
negligently failed to attend and could not raise her substitute, whose pager
had flat batteries. Had a doctor attended and intubated the child, the child
would have lived, but not all doctors would have intubated him and the
defendant said she would not have done so. The trial judge (based on evidence
given by an expert in paediatric respiratory medicine called by the defence
that intubation would not have been appropriate) held that, judged by the Bolam
standard, a decision by the doctor not to intubate would have been in
accordance with a body of responsible professional opinion and causation had
not been proved. This was upheld by a majority of the Court of Appeal. The
House of Lords held as follows: 1 In the generality of cases the Bolam test had
no application in deciding questions of causation; however, where the breach of
duty consisted of an omission to do an act which ought to have been done, the
question of what would have constituted a continuing exercise of proper care
had the initial failure not taken place, so as to determine if the injuries
would have been avoided, fell to be decided by that test. In applying the test,
the court had to be satisfied that the exponents of a body of professional
opinion relied on had demonstrated that such opinion had a logical basis and,
in particular, had directed their minds to the question of comparative risks
and benefits and had reached a defensible conclusion. 2 If, in a rare case, it
had been demonstrated that the professional opinion was incapable of
withstanding logical analysis, the judge was entitled to hold that it could not
provide the benchmark by reference to which the doctor’s conduct fell to be
assessed. In most cases the fact that experts in the field were of a particular
opinion would be a demonstration of the reasonableness of that opinion. 3 As
the trial judge had directed himself correctly and there had been good reason
for acceptance of the defendant’s expert opinion, it had not been proved that
the doctor’s failure to attend had caused the injuries complained of.
The significance of the Bolitho decision is that it
reaffirms the role of the court in assessing whether treatment has been
negligent. It will rarely be necessary for a court to find that the views held
by a competent medical expert are unreasonable but it is nevertheless possible.
If a layman attempts a specialised task, then all the circumstances of the case
will need to be looked at.
 Wells v Cooper [1958] 2 All ER 527
 The defendant
fixed a door handle on to a door. He did the job as well as an ordinary
carpenter would do it. The handle came off in the plaintiff’s hand and he was
injured. It was held that the defendant had exercised such care as was required
of him and was not liable. The degree of skill was not to be measured by the
skill which the defendant actually possessed but by the skill which a
reasonably competent carpenter would have. If a person acted in an emergency,
then they would be judged by the standards of a reasonable person, not a
specialist. A climber who was required to treat an injured fellow climber would
not be judged by the standards of a doctor. The dearth of authorities on this
point perhaps suggests an inherent decency on the part of those so treated!

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