Tort Revision Note Breach of duty

Breach of Duty
-

Breach of duty is a question of fact.

Whether breach or not is always arguable which base on facts of the particular case

(Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743)

By Objective test, reasonable man test, to see what reasonable step should have been
taken to avoid the injury or damage.
(Williams v University of Birmingham [2011] EWCA Civ 1242)

1. Reasonable man
- The reasonable man is presumed to be free both from over apprehension and from
-

over confidence. (Glasgow Corporation v Muir [1943] 2 AC 448, 457)

To decide what is reasonable person, Q: What would the reasonable man have
done in defts circumstances? (Nettleship v Weston [1971] 2QB 691) e.g. driver

2.

case, it should be the standard of competent and experience driver.

Generally, Court will not take account of Deft personal characteristic.
However, sometimes personal characteristics may be relevant:
Child (Mullin v Richards [1978] 1 All ER 920)
Physical or mental (infirmityMansfield v Weetabix Ltd [1998] 1WLR 126)

Relevant factor to the standard of care and breach of duty

Step: step up the standard access Ds conduct measure whether the conduct
meet the standard or not. It is a balancing exercise.
(Lilley Heather Beatrice v Hong Kong and Kowloon Ferry Ltd [2012] HKEC
101)
1. Foreseeability of Harm (Likelihood of the risk of harm) Reasonable person
cannot be expected to guard against unforeseeable harm
(Defendant not liable for unforeseeable harm)
(Smith v Fordyce [2013] WL 618038)
2. Probability of Harm (Likelihood of the risk of harm) Defendant
expected to guard against foreseeable harm, which is reasonably probable
(Fordon v Harcourt-Rivington (1932) 146 LT 391)
- D is liable to reasonably foreseeable harm which is likely to occur.
- The greater probability of harm, the more likely Ds conduct held breach
-

of duty.
Necessary to conduct risk assessment to the harm? It depend on case.
No need to conduct risk assessment as it is simple activity, low risk
(Blair Ford v CRS Adventures Ltd [2012] EWHC 2360)
1

Tort Revision Note Breach of duty

A reasonable man does not take precautions against a very small risk or
small likelihood of harm. (Bolton v Stone [1951] AC 850)

3. The Magnitude of the risk

- Assess the magnitude by 1/ Likelihood of harm and Seriousness of any
-

likely harm. (Beckett v Newalls Insulation Co Ltd [1953] 1 All ER 250)

Seriousness of the consequence must be a factor in assessing the quality of
the case. (Wong Sau Chun v Ho Kam Chiu & Others [2000] HCPI 872 of
1996)

4. Burden or Cost of taking precautions

- burden/cost to eliminate or reduce a risk is high which is far greater than

the benefit of eliminating or reducing the risk, the failure no breach

(Bolton v Stone [1951] AC 850)
Impossible to take precautionno breach
(Ciran Hughes v Newry and Mourne District Council [2012] )
Precaution is unreasonableno breach
(Hayley v London Electricity Board [1965] AC 778
If burden/cost of eliminating risk is not high, failure breach
(Wagon Mound (No 2) [1967] 1 AC 617)

5. The Utility or Social Benefit of the Defendants Activity

- A balancing execrise
- Court will balance utility or social benefit of defendants activity against
-

the risk of injury (Tomlinson v Congleton BC [2004] 1 AC 46)

The greater the utility or social benefit of the defendants activity the less
likely the defendant will be found to be in breach of duty
(Wilkins Shaw v Christopher Fuller & Kingsley School [2012] EWHC
1777)

6. Defendants Financial Resources

- Court will consider Ds financial position to see whether D should take
precaution to eliminate the risk (Knight v Home Office [1990] 3 All ER
-

237)
Once D chose to take the risk, he cant use lack of financial resources as a
reason to defence. (PQ v Australian Red Cross Society [1992] 1VR 19)

7. Common Practice

Tort Revision Note Breach of duty

Evidence is require to prove the common practice (Chung Pun v Hsin

Chong Construction Co Ltd [1986] HKC 454)

Conformity of common practice is a evidence to not breach. (Bank of

Montreal v Dominion Guarantee Co Ltd [1930] AC 659)

Failure of conform with common practice is an evidence of breach (Brown

v Rolls Royce Ltd [1960] 1 WLR 210)

Exceptional Case: common practice will rejected if the negligent is risk
of injury to others. (Edward Wong Finance Co Ltd v Johnson Stokes &

Master [1984] AC 296)

Exceptional Case: Unsafe common practice also be rejected. (Thompson
v Smith Ship repairers Ltd [1984] QB 405)

8. Professional standard of careBolam Test

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolam Test
- Standard of ordinary man possessing the special skill e.g. reasonable of
-

doctor
No need to posses the highest expert skill
Special skills are judged by the standards of persons possessing those

skills.
The application of the standard requires there to be a body of
professional practice or opinion to which to refer in assessing the
conduct of the defendant criticised. (Zhuang PP Holdings Ltd v Lam

Hou Mun [2009] HKEC 1340)

Professional must demonstrate same standard of care as other professionals

in the field
Junior doctor (Task) undertaking the tasks of a senior doctor (post) will be
judged by the standard expected of a senior doctor (Wilsher v Essex Area

Health Authority [1987] QB 730)

Exception: Professional not in breach of duty if conduct accords with one
view of responsible common practice or opinion. (Bowen v National Trust

[2011] EWHC 1992)

The Deft could adduce evidence to different practice to rebut. (Zhuang PP
Holdings Ltd v Lam Hou Mun [2009] HKEC 1340) expert
apply standard, breach.
3

Tort Revision Note Breach of duty

Bolitho Test (Bolitho v City and Hackney HA [1998] AC 232)

- It modified Bolam Test by adding a element of logical and scientific basis
- expert prove logical and scientific basis.
9. Special standard of care
- Child = judged at the standard of reasonable child in of defendants age
-

(McHale v Watson [1966] ALR 513 )

Disabled persons = judged at the standard of Physically or mentally infirm

persons (Mon Ka Yin v Tsang Hing On [2007] DCPI 692 of 2004 )

Exceptional case: No reduction in standard because of common safety
expectation. Eg. Learner driver judged by standard of reasonable driver

(Nettleship v Weston [1971] 2 QB 691 )

Emergency situation = Standard reduced to take account of an emergency

situation. (Ng Chun Pui v Lee Chuen Tat [1988] 2 HKLR 425 )
Sporting Activities = Standard recognizes the standard in heart of the
moment. (Wilks v Cheltenham Cycle Club [1971] 1 WLR 668 )
But it will be breach of duty of care id D break the rule or injury P by
reckless (Condi v Bosi [1985] 1 WLR 866 )

3. Application of objective standard to determine standard of care

(Tam Wing Yan v Smart Elegant Enterprises Ltd [2011] HKEC 258)
4. Burden of Proof and evidence
- Burden of proof is on the P by balance of probabilities
- Breach is matter of fact, P require to provide evidence to show d breach the duty
owed to P.
(Rana Bimla v Hong Tak (Shing Fat) Home for the Aged Co Ltd [2010] HKEC
173)
5. Evidence Ordinance (Cap 8) Section 62
-Conviction in criminal trail from same fact is admissible to civil case which shifts the
burden of proof to the D to prove he is not negligent by balance of probabilities.(Lung
Siu Wing v Lo Wai Ming [2010] HKEC 1839)
6. Res Ipsa Loquitur (The fact speak for itself)
Requirement:
4

Tort Revision Note Breach of duty

The Cause is unknown.

(Sanfield Building Contractors Ltd v Li Kai Cheung (2003) 6 HKCFAR 207)
Without Ds Negligence, it will not normally happen. (Scott v London and St

Katherine Docks [1865] 3 H&C 596)

D is in control of the thing cause harm (Gee v Metropolitan Railway [1873] LR 8)

Step of Res Ipsa Loquitur:

P provide evidence to prove the unusual event

the evidential burden then shifts to the defendant to show, to provide evidence to

explain its action.

The burden of proof still on the P to bring further evidence to show D was
negligent.
(Ng Chun Pui v Lee Chuen Tat [1988] 2 HKLR 425 )

7. Apportionment
- Apportion liability when no evidence as to the circumstances of the accident
- 50% :50%
(Baker v Market Harborough [1953] 1 WLR 1472)