Tort 9 - Breach of Duty of Care 1

After it has been established that a duty of care exists in that the defendant ought to have the plaintiff in contemplation when he undertook the act or failed to act, in order for the defendant to be held liable or for the plaintiff to be awarded damages, or to have any measure of success, the plaintiff must then go on to establish or proof that the defendant has breached the duty. Duty in itself does not imply liability.

The test that is imposed to determine if the duty that is owed has been breached is the objective test and the standard that is imposed is that of the reasonable man i.e. the question that is asked is would a reasonable man have acted in the manner that the defendant did? If the answer is no then the chances are that the defendant has breached his or her duty of care.

Likewise, when it comes to omissions or a failure to act the question that has to be asked is would a reasonable man have failed to act in the given circumstances and if the answer is no then the chances are high that the defendant has breached his duty of care.

In Vaughan v Menlove (1837) the defendant stacked hay by the plaintiff’s cottage close to his chimney and the plaintiff had warned the defendant repeatedly on numerous occasions that there is a possibility that the hay could catch fire. The defendant ignored the plaintiff’s warning and outwardly said that he was prepared to take the risk. The hay caught fire and burnt the plaintiff’s cottage down. The plaintiff sued. The court held that the question that was to be asked is would a reasonable man have acted in the manner that the defendant did? The answer was no and therefore the defendant was held to be liable.

Once a duty of care has been established it is fairly easy to determine if the duty has been breached or otherwise.  

In Mahon v Osborne (1931) a patient died shortly after a surgery and the post mortem revealed that the surgeon who had conducted the surgery had negligently left a swab of cotton in the patient’s body. The court held that there was no need to look any further and that the swab of cotton was sufficient prove that the defendant had been negligent and had breached his duty of care – the principle of res ipsa loquitor was applied i.e. the thing (swab of cotton) speaks for itself.

In Phillips v William (Whiteley) Ltd (1938) the plaintiff was referred to a jeweler to have her ears pierced. The plaintiff walked into the jeweler and after having her ears pierced developed an infection that consequently caused her to develop an abscess in her neck. She had to have the abscess surgically drained and subsequently sued the jeweler (defendant) for his negligence.

It was held that a jeweler is not a surgeon or someone who is deemed to be a specialist or someone who professors to be an expert in the field of ear piercing and therefore the duty that was imposed on the jeweler was lesser than that which would be imposed on someone who was an expert or a specialist in the field and hence the jeweler was held to be not liable.

We also have to look at the practical aspects of the case and to impose a duty on jewelers would undoubtedly lead to an increase in litigation and while jewelers have always performed the function of ear piercing or nose piercing for that matter, it is normally at the request of the plaintiff and the possibility that there might be an infection following the procedure was and is something that is accepted.

In Bolton v Stone (1951) the plaintiff was sitting in the terraces watching a cricket match when the batsman hit the ball over the fence and the plaintiff was struck in the head by the ball and as a result suffered injuries. The plaintiff sued the cricket club for injuries sustained and for not erecting fences high enough to stop the ball from going over. The court held that the fences that were in place, the fences measured up to 7 feet in height and the pitch was further sunk some 10 feet which in effect imposed a 17 feet barrier between the terraces and the pitch, were sufficient to stop the ball from going over and the accident was something that was out of the ordinary, and was not something that was foreseeable. The cricket club was held to be not liable.

Copyright © 2019 by Dyarne Ward and Kathiresan Ramachanderam