Introduction
A breach of duty of care constitutes a fundamental concept within the domain of tort law. It arises when an individual or entity, owing a legal duty to another, fails to exercise the standard of care that a reasonable person would under similar circumstances. This failure to meet the requisite standard of care, often described as negligence, can result in harm to the individual or entity to whom the duty was owed. Central to any claim of breach of duty of care are technical principles that determine the existence and extent of the duty itself, as well as the specific actions required to satisfy it. Key requirements include: the establishment of a legal duty, a demonstrable breach of that duty, a causal connection between the breach and any resulting harm, and a demonstration that the harm that occurred was not too remote. This article will utilize formal language throughout to maintain an authoritative tone.
Establishing a Duty of Care
The first element to consider when assessing a claim for breach of duty of care is to establish that there is a duty of care. The legal framework for this can be found in the landmark decision of Donoghue v Stevenson [1932] AC 562. This case established that a duty of care can arise from foreseeability of harm, where a party ought reasonably to have another in contemplation. The modern framework that stems from Caparo Industries plc v Dickman [1990] 2 AC 605, refines this principle further and requires foreseeability of harm, proximity between the parties and that the imposition of such a duty must be deemed fair, just and reasonable. Proximity relates to the relationship between the parties and the connection between the defendant and the claimant. A claim for breach of duty of care cannot be established if a court finds no legal basis to establish a duty to care.
Example of Duty of Care
- A driver's duty to other road users: A driver of a motor vehicle owes a duty of care to other road users, such as pedestrians, cyclists and fellow drivers. This duty requires the driver to operate the vehicle with reasonable care to avoid causing harm. The precise duty that is owed is to conduct all actions as a reasonable driver might ( _Nettleship v Weston [1971] 2 QB 691 _). This would include an obligation to drive within the speed limit, to take care when looking at a road map while driving and not be distracted by passengers in the vehicle.
- A medical professional's duty to patients: Medical professionals have a duty to exercise care when treating patients. This requires that they act with a standard of skill expected of a reasonably competent medical professional, to make correct diagnosis, and to disclose any risks of treatment and/or non-treatment, which may impact the patient’s autonomy in making a decision about whether to consent or not ( _Montgomery v Lanarkshire Health Board [2015] UKSC 11 _).
- An employer's duty to employees: An employer owes a duty to employees to provide a safe working environment, including safe equipment and a system of work. This duty includes ensuring, where an employer provides equipment, it is fit for purpose, and also includes maintaining an awareness of potential hazards to employees to ensure that these are either removed or mitigated ( Walker v Northumberland County Council [1995] 1 All ER 737). It is also their responsibility to ensure that their employees are adequately trained to operate equipment safely ( Bux v Slough Metals [1973] 1 WLR 1358 ).
- A public authority's duty to the public: A public authority will owe a duty of care to the public when using its public power, such as during the conduct of a police investigation ( Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 ), when acting in the role of an emergency service ( Kent v Griffiths [2001] QB 36 ).
Breach of the Duty of Care
Once a duty of care has been established it is then necessary to demonstrate a breach of the duty. This requires an objective evaluation of the defendant’s conduct compared to that of the hypothetical ‘reasonable person’. The test in determining breach was set out in Blyth v Birmingham Waterworks (1856) 11 Exch 781 where Alderson B stated: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. The standard of care expected is influenced by a variety of factors, including but not limited to: the nature of the risk, the likelihood of the risk occurring, the gravity of the potential harm, the cost and feasibility of taking preventative steps, as well as any professional obligations or special skill that a defendant may have. Where a defendant is an individual with diminished capacity, this will be taken into account when assessing whether they have met the standard of care ( Mansfield v Weetabix Ltd [1998] 1 WLR 1263 ) and also where the defendant is a child ( Mullin v Richards [1998] 1 WLR 1304 ). The standard of care is raised where an individual is a professional, such as a medical practitioner ( _Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 _). However, the application of a professional standard of care is limited, and courts reserve a degree of power to critically assess the logic of a professional practice ( Bolitho v City and Hackney Health Authority [1998] AC 232 ).
Examples of Breach
- A driver exceeding the speed limit: A driver who operates their vehicle beyond the prescribed speed limit is generally in breach of their duty to act with reasonable skill, even if they are not aware of the risk of harm caused by speeding. ( Haynes v Harwood [1935] 1 KB 146 ) This does not mean that a driver cannot also act with reasonable skill while speeding, but where a driver does speed and causes an accident they will be deemed to have breached their duty of care, especially where it results in harm.
- A doctor failing to diagnose a condition: A doctor who fails to conduct appropriate tests based upon clear symptoms is likely in breach of the duties they owe as a medical professional ( R v Adomako [1995] 1 AC 171 ). This will especially be true if they fail to diagnose a condition that other medical professionals would have identified. The lack of a positive test would not be considered an appropriate excuse because the medical professional would be required to undertake and interpret all appropriate tests ( Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 ).
- An employer failing to provide safety equipment: An employer who fails to provide suitable safety equipment to employees may be in breach of their duty of care to safeguard the health and safety of their workforce. An employer is also responsible for making sure that any safety equipment that is provided is usable and effective and should monitor the employees to ensure use ( Bux v Slough Metals [1973] 1 WLR 1358 ).
- A public authority providing incorrect information: A public authority that provides misleading information to an individual may be liable for negligence, especially if they have assumed responsibility for a particular service ( Kent v Griffiths [2001] QB 36 ), and have breached their duty to provide complete and accurate information. A public authority will not be able to escape liability even if that information was given by an administrative member of staff ( Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 ).
Causation and Remoteness
A breach of duty of care in itself is not enough to demonstrate a valid tortious claim. In addition to the elements of duty and breach, it is necessary that the breach has caused the claimant’s harm. This means it is necessary to show a link between the breach of duty and the damage that has been sustained. A useful test for factual causation is the ‘but for’ test, which means that “but for” the breach, would the claimant have suffered this loss. The concept was affirmed in Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428, which held that the doctors actions may have been negligent, but that the patient was going to die regardless of that negligence and therefore there was no causal link between the breach of duty and the death.
The law also requires that the damage is not too remote from the act. To establish the damage was not too remote, one needs to apply the test of reasonable foreseeability set out in The Wagon Mound (No 1) [1961] AC 388. The test is whether, at the time of the breach, a reasonable person would have foreseen the kind of harm that occurred. It is not essential to show that the precise harm and the precise manner it occurred was foreseeable ( Jolley v Sutton LBC [2000] 1 WLR 1082 ). An individual may be liable for the full extent of the harm, even if it is greater than would have been foreseen, under the principle that a tortfeasor takes the victim as he finds him ( Smith v Leech Brain & Co [1962] 2 QB 405 ). There is an exception for cases involving concurrent wrongdoers, where apportionment is applied based on the contributions to the harm ( Rahman v Arearose Ltd [2001] QB 351 ).
Examples of Causation and Remoteness
- A patient’s condition worsening due to negligent medical treatment: If a medical professional negligently diagnoses a condition and in consequence of that misdiagnosis, the patient’s condition worsens, the misdiagnosis is deemed to have caused the worsening of the health and therefore there is a clear causal relationship. Causation will be broken if a patient fails to take any additional steps to mitigate his/her losses.
- A car crash resulting in injuries: When a driver speeds and is in breach of duty, there is a causal link between this negligence and the resulting injuries of any third party as long as it was reasonably foreseeable that some damage would result from that breach. It is unnecessary to demonstrate the precise nature of the injury, only that some harm was foreseeable ( The Wagon Mound (No 2) [1967] 1 AC 617 ).
- An employer’s breach leading to an employee’s harm: An employer who fails to provide adequate safety measures resulting in a worker’s injury can be considered as having materially caused that injury ( Bonnington Castings Ltd v Wardlaw [1956] AC 613 ). It is not necessarily the case that the employer was the sole reason for the injury, it is only necessary to demonstrate that a negligent act materially contributed to the damage sustained.
Conclusion
The concept of a breach of duty of care is multi-layered and complex. Whilst it stems from very basic concepts of legal and moral duty, it must be proven using specific technical standards and tests. This article provides an overview of these concepts. While it is possible to identify particular standards and applications of the law in practice, each case will depend on the facts and should be dealt with carefully with consideration of all elements that are necessary for tortious liability to be present. The complexities of such a process demand careful and considered analysis by practitioners.
