{"id":288,"date":"2019-08-05T12:10:24","date_gmt":"2019-08-05T12:10:24","guid":{"rendered":""},"modified":"2019-08-07T11:15:17","modified_gmt":"2019-08-07T11:15:17","slug":"breach-of-duty-favor-both-parties-7252","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/tort-law\/breach-of-duty-favor-both-parties-7252.php","title":{"rendered":"Does the Issue on Breach of Duty Favor Both Parties?"},"content":{"rendered":"

LAW
\n OF TORT<\/strong><\/p>\n

The scope of this text is to
\ncritically assess if the issue on breach of duty sufficiently favors both
\nparties or if indeed time has come for further reforms to be put in place. This
\nessay compares breach of duty from the time it was first applied in past cases,
\nthe cases that took place not so long after it was first established, to how it
\nhas evolved with time to cater for the needs of modern day cases. It
\nparticularly analyzes the lack of skill and experience as a threshold in
\njudging the defendant in a court of law. 
\nIn my view, the current position on breach of duty is sufficiently fair
\nalthough not fully, to both parties because it is based on the balance of
\nprobabilities thus in certain scenarios the defendant may be favored while in others,
\nthe claimant may be favored. It is not fully fair to both parties as the task
\nof proving that the defendant was negligent may be a difficult task to the
\nclaimant because courts take a number of factors into account; nature of
\nactivity in question, cost of risk avoidance, likelihood of harm arising from
\nthe activity in question and the extent of harm. [1]<\/a><\/sup><\/p>\n

Breach of Duty is a major principle
\nof negligence which mainly questions if the defendant was careless by not
\nmeeting the required minimum standards of care applicable to him. Negligence as
\ndefined by Alderson B in Blyth v
\nBirmingham Waterworks Co<\/em> (1865) 11 Ex 781 at 784: \u201cis the omission to do
\nsomething which a reasonable man, guided upon those considerations which
\nordinarily regulate the conduct of human affairs, would do, or doing something
\nwhich a prudent and reasonable man would not do.\u201d This has since then been
\napplied in cases when establishing what negligence is and the standard of care
\nexpected. To establish if indeed the defendant breached his duty of care and is
\nnegligent, a two-staged approach is followed. Firstly, what standard of care
\nwas the defendant expected to reach and secondly whether the defendant reached
\nthe standard of care? <\/p>\n

The standard of care
\nincludes that of the reasonable man: the ordinary citizen and not the defendant
\nhimself. This has been applied in cases such as: McFarlane v Tayside Health Board<\/em> (1999) 3 WLR 1301by Lord Steyn
\nwho describes the reasonable person as \u2018commuters on the London Underground\u2019.  It is objective with exceptions such as inexperienced
\ndefendants who are held to the level of skill with that of experienced
\ndefendants in the field in question.[2]<\/a>This is also applied in Glasgow
\nCorp v Muir<\/em> [1943] AC 448. Thirdly, specialist defendants such as doctors
\nor accountants: the standard of care is that of a reasonably competent person
\nin the profession at any particular time.[3]<\/a>Fourthly, the standard of care varies to cater for special circumstances.[4]<\/a>In the case of Blyth v Birmingham
\nWaterworks Co<\/em>, which gave rise to the idea of the \u2018reasonable man\u2019, the claimant
\nsues the water company as being liable for causing damages to his house by failing
\nto meet the standard of care owed to him. He argues that due to the defendant\u2019s
\nlack of responsibility to remove the accumulations of ice from the fire-plug,
\nthe company was negligent and breached their duty of care. The jury found no
\nbreach of duty on the part of Birmingham Waterworks Company, as they did not
\nsee it fit to hold them liable for an accident that was not foreseeable.
\nAlderson B, stated that: \u201cthe defendants had provided against such frosts as
\nexperience would have led them, acting prudently, to provide against; and they
\nare not guilty of negligence and breach of duty, because their precautions
\nproved insufficient against the effects of the extreme severity of the frost of
\n1855, which penetrated to a greater depth than any which ordinarily occurs south
\nof the polar regions.\u201d From this case, it is evident that breach of duty could
\nonly occur if, unintentionally, the defendant omitted to do that which a
\nreasonable person would have done, or did that which a person taking reasonable
\nprecautions would not have done the risk in question. In my view, the position
\nof breach of duty at the time was not fair to both parties as it took into
\nconsideration if the risk involved was foreseeable to the defendant and whether
\na reasonable man would do the same given the same circumstances, ignoring the
\ndamages accrued to the claimant.<\/p>\n

Professional men and women are
\nusually governed by the standard of care of a normal person and are subject to exemption
\nif he can show that his practice was according to a respectable body of opinion
\nin his field.[5]<\/a>
\nThis simply meant that, the court would not judge the defendant based on
\nexpected future developments in knowledge but by the state of knowledge of the
\nnormal professional at the time of the alleged breach of duty. This is applied
\nin Roe v Ministry of Health<\/em>, [6]<\/a><\/sup>
\nwhereby each of the claimants\u2019 was paralyzed when a contaminated aesthetic was
\nadministered to them during an operation. The cause of the contamination were
\ntiny cracks in the ampoules in the liquid anesthetic. Lord Denning states that
\nit was not negligent for the defendant at that time because the anesthetist
\ncould not have known that there were tiny cracks due to lack of knowledge and
\nexperience: we must not look at the 1947 accident with 1954 spectacles. The
\ncourt thereby dismissed the claimant\u2019s appeal. From this case we see that the
\nposition on breach of duty in the early 1950s was not fair to both parties as
\nit favors the defendant on claims that he could not have done anything to
\nprevent the accident involved. This is because the defendant acted according to
\na respectable body of opinion in the medical field. On the other hand, the
\nclaimant is not compensated for being paralyzed as a result of the defendant\u2019s
\nlack of knowledge at that particular time. However, in 1971 in Nettleship v Weston<\/em>, the view that
\nstandards of care should vary was brought into question but it was later
\ndismissed by Lord Denning who believed that the standard of care should still
\nbe that of the skilled and experienced driver.The claimant\u2019s appeal
\nis therefore allowed and both parties are judged fairly.<\/p>\n

However, in 1971 in Nettleship v Weston<\/em>, the view that
\nstandards of care should vary was brought into question but it was later
\ndismissed by Lord Denning who believed that the standard of care should still
\nbe that of the skilled and experienced driver.The claimant\u2019s appeal
\nis therefore allowed and both parties are judged fairly. Both Lord Denning and
\nSalmon LJ accepted that the share of responsibility made by the trial judge and
\nreduced damages by one half because of the claimant\u2019s contributory negligence.[7]<\/a> From
\nthe above cases, it is quite clear that in establishing the standards of care applicable
\nto professional defendants, there has been a series of evolution from 1938 in Philips v William Whiteley[8]<\/strong><\/a><\/em>where the ruling favored the defendant to Nettleship v Weston in recent
\npast whereby the ruling was quite fair to both parties.   <\/p>\n

In establishing whether the standard
\nof care was reached, the claimant is expected to prove breach of duty in
\nrelation to the balance of probabilities. In the past, courts used to be mainly
\npro-defendant especially in medical malpractices such as those involving the
\nconcept of \u2018informed consent\u2019 which have then led the courts to move towards
\nthe claimant\u2019s side due to the growth of human rights law.[9]<\/a> In
\nCivil
\nEvidence Act 1968 s, 11: it states that the presumption of liability may be as
\na result of the claimant\u2019s proof of conviction. This is applied in Kralj v McGrath and St. Theresa\u2019s Hospital<\/em>.[10]<\/a> Moreover, the claimant is
\nexpected to prove that the damages caused by the defendant was in the exclusive
\ncontrol of the defendant. This concept was brought about by the res
\nipsa loquitur<\/em>
\nprinciple which was applied in scenarios where there was no exact cause of
\ndamage or injury that can be proved by the claimant. For example in Scott v London and St. Katherine\u2019s Dock<\/em>.[11]<\/a>
\nThe trial judge therefore ruled in favor of the defendant because there was no
\nproof that he had been negligent even though circumstances suggested that there
\nhad been some element of negligence. However, it has been argued that this
\nprinciple has the effect of reversing the burden of proof because it is almost
\nalways impossible for the defendant to explain exactly what happened. [12]<\/a>In the case of Ward v Tesco Stores<\/em>[13]<\/a>for example, the ruling is in favor of
\nthe claimant as the defendant could not really explain how long the yoghurt and
\ntherefore had no other evidence to successfully defend the claim.<\/p>\n

From these cases, it is evident
\nthat in the past, different cases favored the different parties due to the res ipsa loquitur <\/em>principle which has
\nsince then been declared unnecessary after the Consumer Protection Act 1987.
\nThis is mainly because the application of this principle usually eases the
\nclaimant\u2019s difficulties in proving breach of duty, placing the defendant in a
\ndifficult position in defending the claim that he breached his duty of care. [14]<\/a>Consequently, the position on breach of duty was not sufficiently fair to
\nboth parties.<\/p>\n

However, certain alterations have
\nbeen implemented in a way to suit modern cases. Establishing breach of duty for
\nskilled and experienced personnel is not always a straightforward matter in a
\ncourt of law.[15]<\/a>In the case of Vowles v Evans<\/em>,
\n[16]<\/a> <\/sup>the
\njudge brings in an argument of whether in sporting skill, the degree of skill
\nto be expected of a referee depends on his grade or that of the match he is
\nrefereeing. [17]<\/a>He later states that a volunteer called to stand in when the nominated
\nreferee failed to show up, could not reasonably be expected to show the level
\nof skill of one who holds himself out as a referee or to even be fully
\nconversant with the game at hand. This case differs with Nettleship v Weston as
\nit introduces a proposition that there is no breach of duty when a volunteer
\nfails to show the standard of care to that of an experienced referee. Consequently,
\nan inexperienced defendant and an experienced defendant will be judged
\ndifferently in a court of law. Furthermore, in James v Butler<\/em>, [18]<\/a>  <\/sup>the Court of Appeal introduced a
\ndifferent view when judging a defendant for breach of duty based on lack of
\nspecial skills: the standard of care should be related to the type of activity
\nrather than the category of the person who was carrying out that activity. In
\naddition to that, the court also ruled that it was not reasonable to have
\nexpected the claimant to have checked for permission before entering the
\nconservatory area since it would have appeared to him that the area was safe. This
\nshows, that the current position of breach although not fully, is slowly
\ntransitioning towards being sufficiently fair both parties.<\/p>\n

In conclusion, based on the
\ndifferent cases discussed and evidence from case law, professional negligence
\ncases which do not involve clinical negligence, the courts have been inclined
\ntowards terming it as breach of duty in a practice which is commonly adopted
\nand followed by professional people carrying out their usual activities.[19]<\/a>Courts have ruled that if a profession has different schools of thoughts,
\na professional person must be judged against the lowest acceptable standard.
\nThis might have been reflected in Hyde v
\nJD Williams and Co<\/em>.[20]<\/a>In my view, this essay proves that the current position on breach of duty
\nis sufficiently fair to both parties as courts of law have made it more
\npossible for the claimant to prove breach of duty and for the defendants to
\ndefend their claim.<\/p>\n

BIBLIOGRAPHY<\/p>\n