Breach of Duty of Care Cases

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Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781

Facts: Birmingham waterworks put a new fireplug near the hydrant of the house of Mr Blyth. There was a particularly heavy frost one winter and, as a result, this broke and there was massive flooding to Mr Blythe’s house. He wanted compensation for the damage done to his house

Held: It was established that Birmingham Waterworks did have a duty of care, but the frost that severe was outside the contemplation of what a reasonable person would have and so they were protected by that.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583

Facts: Bolam was a mentally ill patient. One of the treatments he received (which still exists today surprisingly) was ECT (electroconvulsive therapy), which basically means you administer electric shocks to someone. There was some debate, and there still is, about the safest way to administer the ECT → some said you should give a relxant drug to the patient as that would prevent convulsions which can cause all sorts of injuries and others said you could put a metal sheet over them to stop their limbs moving as much. Bolam had the therapy using the metal sheet and he suffered significant injury. He said had they used relaxant drugs then he wouldn't have suffered the injuries, which is true.

Held: However, Bolam did not win the case because the doctors who were administering this treatment used something that was recognised practice at the time. In other words, the doctors had not breached the standard: it was a reasonable thing for a skilled person to have done.

“It is not essential for you to decide which of two practices is better practice, as long as you accept that what the defendant did was in accordance with practice accepted by reasonable persons” - McNair J

Bolitho v City and Hackney HA [1998] 3 WLR 1151

Facts: A boy suffered brain damage after a doctor failed to attend. The defendant (doctor) argued that the decision not to intubate (i.e. insert a tube down his throat) the boy earlier could be confirmed as accepted practice by a reliable and respectable body of opinion

Held: The courts held that so long as the experts have ‘reached a defensible conclusion’ (i.e. reasoned basis for their decision) then they would not be liable<

Bolton v Stone [1951] AC 850

Facts: During a cricket match the ball was hit over a 17ft fence and struck a woman who was standing on a pavement. The ball had only been hit over this fence 6 times in 30 years

Held: The court said you cannot minimise every single risk. So the fact that the likelihood of the ball being struck of the fence was very slim they were not liable (but, if it happened a lot then there may have been liability)

Chester v Afshar [2005] 3 WLR 927

Facts: There was a 1-2% risk of cauda equina syndrome during a surgery, which materialised.

Held: The court found that there was a causal connection between the fsailure to inform the claimant of the risk of injury and the injury that actually materialised. In other words, if the claimant had been informed of the risk she would likely have sought further advice on the surgery and seeked alternative treatment.

At the House of Lords, by a 3:2 decision (Bingham and Hoffman dissenting), the appeal by the defendant was dismissed i.e. the defendant was found to be guilty of negligence. The court said, in effect, that the patient should be able to make an informed choice and consent to the surgery; so the doctor not telling the claimant of the risk was negligent, as it did not allow the claimant to make a decision. This idea that the patient should be able to make an informed choice and consent to the surgery has chipped away at the Bolam test.

Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333

Facts: There was a left-hand drive ambulance and it didn't have signals attached so you had to wave arm outside window to indicate. In the process of doing that there was an accident. Perhaps in normal times this would be dangerous driving, but as it is wartime and they are an ambulance doing an important job then that needs to be taken into consideration

Held: The court said that although there was a risk invovled and the likelihood of harm seems quite high, the utility of what they were doing was also incredible high so they took that into consideration.

“…if all trains in this country were restricted to a speed of five miles per hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justified the assumption of abnormal risk” Asquith LJ at 336

Glasgow Corporation v Muir [1943] 2 AC 448

Facts: Sunday School children were going to have a picnic, but it rained. The Outling leader asked a tearoom manager if they could have their picnic there. A large tea urn was carried along the corridor by two adults to the main teamroom. The tea urn overtowned and scalded a girl. The parents of the girl sued Glasgow Corporation, claiming they owed the girl a duty of care and they had breached this.

Held: It was held that the magaress owed a duty of care generally to the people in the tea room, BUT, she did not owe an additional duty of care to the Sunday School: they were not expecting them.

Lord Macmillan at 457 said the reasonable person test is a bit of an “impersonal test” as “some persons are by nature unduly timorous” and others “fail to foresee or nonchalantly disregard even the most obvious danger” → “The reasonable man is presumed to be free both from over-apprehension and from over-confidence”

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Haley v London Electricity Board [1965] AC 77

Facts: This case was concerned with the foreseeability of blind persons in the City of London. Some employees of the defendant were conducting repairs in the road ith statutory authority. They left a spanner in the road and a blind person tripped on it and injured themselves. The question was whether or not a duty of care was owed to the blind people of London.

Held: The court said it was foreseeable: just because blind persons constitute only a small percentage of the population does not make them unforeseeable

Jones v North West SHA [2010] EWHC 178 (consultant obstetrician)

Facts: A Jehovah’s Witness had a baby and it went a bit wrong. As a result there were problems with the baby. The question for the court was, should the mother have been offered a Caesarian because, if she had a Caesarian the problems with the baby would not have arisen. The hospital admitted the problem with the baby would not ave occurred if she had a caesarian, but they said that there are other risks involved with caesarians; so either way there would be potential problems. Furthermore, with a caesarian there is a lot of blood loss and as a Jehovah’s Witness she wouldn't have had a blood transfusion.

Held: The court held that the consultant was protected (i.e. not liable) using the cases of Bolam and Bolitho i.e. the consultant's actions were the same as would have been taken by any other ordinary skilled consultant

Knight v Home Office [1990] 3 All ER 237

Facts: The claimant's husband committed suicide while detained in a prison hospital.

Held: It as held that the standard of care of the hospital may have fallen below that expected in an NHS psychiatric facility, but they still dismissed the claim. The court said that "in making the decision as to the standard demanded the court must… bear in mind as one factor that resources available for the public service are limited”. In other words, the court will take into account the finances available to the defendant in determining whether or not he/she has breached their duty of care

Latimer v AEC Ltd. [1953] AC 643

Facts: There was an exceptionally heavy rainstorm which flooded the factory floor and oil from channels under the ground rose to the surface. The employer took a lot of precautions following the incident, which included putting down sawdust and putting up notices warning people. The plaintiff (i.e. claimant) slipped and a heavy barrel crushed his ankle.

Held: The House of Lords held that the defendant was not negligent because they had done everything they could to minimise the risk

M's Guardian v Lanarkshire Health Board [2010] (consultant and the senior registrar)

Facts: A lady was diabetic and was concerned that the baby might be much larger than a normal baby usually is (this is common in diabetics), which may make the birth difficult. There were complications at birth and the baby was technically dead, but was later revived and suffered cerebral palsy: so the baby's guardian sued the hospital on the baby's behalf. The case all came down to how the baby's heartbeat was read: it was argued it was read wrong, but there was evidence that showed other medics would have read it in the same way

Held: So although if the baby's heartbeat had been read differently the outcome would have been better, the fact that other people would have done it in the same way meant there was no liability in negiglence for the doctors, applying the cases of Bolam and Bolitho

Mansfield v Weetabix Ltd [1998] EWCA Civ 135

Facts: A lorry driver crashed into a shop. Normally, this would be a significant breach of the standard you are supposed to have. However, they found this driver had a malignant insulinoma, which essentially meant he was in a hyperglycemic state at the time

Held: The court therefore said he was not in breach of his duty of care because he didn't know

McFarlane v Tayside Health Board [1999]4 All ER 961

Facts: The reasonable person was to be a 'commuter on the London Underground' (per Lord Steyn). Mr McFarlane had a vasectomy (i.e. a permanent contraception). The following year he was told his sperm count was negative. A year after that his wife got pregnant with his 5th child (which should not have happened). The claimant therefore claimed the pain and distress from pregnancy and birth (£10,000) and the costs of rearing the child (£100,000)

Held: It was held that the cost of the pregnancy was allowed, but the cost of raising the child was not allowed. The court said they thought the reasonable person would think it immoral for them to get compensation for having a healthy child

Mullin v Richards [1998] 1 WLR 1304

Facts: Two schoolgirls (15yos) were having a sword fight with plastic rulers. One rule snapped and stuck in one girl’s eye which caused significant damage

Held: The court said because they are 15yos they don't appreciate the risk so should be held against the standard of a reasonable 15yo schoolgirl. So, the defendant was not found to be in beach of her duty

Nettleship v Weston [1971] 3 WLR 370

Facts: A friend took a learner driver out on a practice drive. The learner panicked and drove into a tree. This did significant damage to the claimant's leg. The issue was whether or not the earner should be judged to same standard as a normal driver

Held: Legally it was held that the learner was as competent as a normally skilled driver, so th learner driver was negligent

Compare this case with Mansfield v Weetabix Ltd [1998]

Newell v Goldenberg [1995] 6 Med LR 371

Facts: The claimant's husband had a vesectomy. It naturally reversed (this happens in 1/2000 cases). She sued the surgeon for not mentioning that this was possible. The doctor said he followed good practice and other doctors don't mention the possibility of a vesectomy naturally reversing.

Held: The court did not like the arguments of the doctor, so awarded the claimant compensation. It was said that the Bolam Test will not let someone off poorly done work<

Orchard v Lee [2009] EWCA Civ 295

Facts: Some children were playing tag in the platground. One boy who was playing ran straight into a teacher causing her personal injury

Held: The court took into conideration the standard of a reasonable 13 year old boy i.e. they took the defendant's age into consideration

Overseas Tankship Ltd v The Miller Steamship, The Wagon Mound (No 2) [1967] 1 AC 617

Facts: The defendant negligently released furnace oil into the sea. There was only a very small risk that it would ignite and would only do so in very unusual circumstances. However, it did ignite causing massive damage to the Claimant’s ship

Held: The court said that a reasonable person would not ignore even a small risk “if action to eliminate it presented no difficulty, involved no disadvantage and required no expense” [642]

Compare this case with Bolton v Stone [1951]: in that case, making the fence taller would have been a big expense for a small cricket club. However, in this case, they did not need to do much in order to prevent the incicdent from occurring and, furthermore, the action of the defendant had no utility i.e. they were just polluting the water

Paris v Stepney BC [1951] AC 367

Facts: A car mechanic was fitting bolts and screws to a vehicle's wheel. There was a danger they may potentially fly out (although this was a small risk). While fitting the bolts one of them flew out and struck the mechnic in the eye; in fact, he only had one good eye and the bolt struck that eye, which was serious as it meant he weant completely blind. Furthermore, no protective goggles had been given to him.

Held: The court said that providing goggles don't cost much and the consequences are really serious

Roe v Minister of Health [1954] 2 All ER 131

Facts: The date of this case was 1954, however it was referring to an incident that happened in 1947. They used to keep spinal anaesthetic in glass ampoule and, here, the glass ampoules had been contaminated causing the patient paralysis. So the claimant sued. By the time this case got to court everyone knew that spinal anaesthetic should not be kept in glass ampoules because they crack and get contaminated

Held: So, in 1954, the court said to have the anaesthetic stored in this way would be a massive breach of the standard you would expect, but the court said you can “not look at the 1947 incident with 1954 spectacles” (Denning). In other words, you have to look at what people knew at the time. As they did not know that it was best to avoid using glass ampoules, the court found that there was no breach of duty of care

Sidaway v Bethlem Royal Hospital Governors [1985] AC 871

Facts: The claimant consented to an operation. The neurosurgeon did not mention the 1% risk of paraplegia if the claimant went through with the operation. The risk materialised

Held: Using the Bolam test, whether the neurosurgeon was negligent depended on whether his standards fell below the standard of a reasonable neurosurgeon. In other words, if a reputable body of neurosurgeons would have acted in the same way as the defendant here, then he will not be liable for negligence. It was held that the neurosurgeon was not required to give an elaborate explanation of the risks to the claimant, so he was not liable.

Wells v Cooper [1958] 2 All ER 527

Facts: Someone had a flat and a visitor came to see them. The visitor went upstairs to the door and, when attempting to open the door, the doorhandle came off causing the visitor to fall down the stairs. So, they sue the owner arguing that they breached the standard of care required when fitting doorhandles to doors (i.e. the screws used to put the doorhandle in place were too short)

Held: The court said that the defendant was to be judged in comparison with a reasonably skilled amateur carpenter. So, even though it was a poorly done job by an amateur, the defendant still had to mee the standard of a reasonably skilled amateur carpenter

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