Negligence II: Breach of Duty

A. Introduction

Recalling the general negligence framework, breach is the fourth

element in the 6 part negligence enquiry.

 Harm of a recognised kind;

 A duty of care owed by D;
 That the harm complained of was within the scope of the duty;
 A Breach of a duty of care;
 Causation of damage (both factual and legal);
 Damage that is not too remote.

What we want to know is whether D acted in breach of that duty.

In doing this, a critical point to bear in mind is that there is not generally
a duty to do (ie, ensure that you accomplish) X in the law of negligence.

For the most part, the relevant duty is merely a duty to take
reasonable care to do X

To identify whether D has taken reasonable care to do X, we must

identify the relevant standard of care.

B. The Standard of Care

The standard of care allows us to say which acts or omissions are

negligent in the narrow sense.

That is, it enables us to identify the point at which conduct may fairly be
described as negligent.

1. Definition

Blyth v Birmingham Waterworks (1856) 11 Ex. 781

The omission to do something which a reasonable man ... would do or the

doing of something that a reasonable man would not do (Alderson B).

2. The Reasonable Person

The reference to what a reasonable person would (not) do, means the
standard is an objective one.

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Nettleship v Weston [1971] 2 QB 691

I have treated Mrs. Weston as the driver who was herself in control of the
car. On that footing, she is plainly liable for the damage done … She
owed a duty of care … It is measured objectively by the care to be
expected of an experienced, skilled and careful driver (Denning MR).

Another member of the panel noted that a variable (instead of fixed,

objective) standard of care might have some support from arguments
rooted in fairness.

But he also noted that a variable approach would give rise to too much
uncertainty.

It is preferable that there should be a reasonably certain and reasonably

ascertainable standard of care, even if on occasion that may appear to
work hardly against an inexperienced driver, or his insurers. The
standard of care required by the law is the standard of the competent and
experienced driver (Megaw LJ).

NB Goldman v Hargrave [1967] 1 AC 645

Less must be expected of the infirm than of the able-bodied … [and the
defendant] should not be liable unless it is clearly proved that he could,
and reasonably in his individual circumstances should, have done more
(Lord Wilberforce).

Some Reading
D Nolan, “Varying the Standard of Care in Negligence” [2013] Cambridge
Law Journal 651.

3. Pitching the Standard of Care at the Appropriate Level

(a) Introduction

Deciding what amounts to the appropriate standard of care is a question

of law, whereas deciding whether the standard has been met is a
question of fact.

Mainly, the relevant factors relate to the circumstances in which the

allegedly negligent act took place, but others concern D’s attributes.

(b) External Factors affecting the Standard of Care

There is a range of established factors to take into account in

determining the standard of care.

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(i) Likelihood of harm occurring

As a general rule, the amount of care required of D will increase in direct

proportion to the probability of harm occurring.

Glasgow Corporation v Muir [1943] 2 All ER 44

Mrs Alexander [the Manageress] had no reason to anticipate that such an

event would happen ... and consequently there was no duty incumbent on
her to take precautions. (Lord Macmillan)

He also stated that: “[t]he degree of care required varies directly with
the risk involved”.

Bolton v Stone [1951] AC 850

Lord Radcliffe stressed two points:

(a) The ball had to clear the fence (remote chance)

(b) It then had then to hit a passer-by (even more remote chance)

Thus, the occurrence was too unlikely to say that there had been a
breach of duty.

An ordinarily careful man does not take precautions against every

foreseeable risk … life would be almost impossible if he were to attempt
to take precautions against every risk (Lord Oaksey).

Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR

1434
Tse Parc Ki v Atlantic Team Ltd [2007] HKEC 2224

it is a schoolteacher’s duty to take all reasonable and proper steps,

bearing in mind the known propensities of children, to prevent any of his
pupils from suffering injury … What things are likely to injure pupils is a
question of degree, depending on the nature of the thing and the age of
the pupils (Deputy Judge J Ko).

NB This propensity to be injured goes down as we get towards

adulthood, but then it increases again as we become v old and frail.
So we may need to extra care with them, too.

Even doing what is ordinarily safe will not be enough if circumstances

change in a way that increases the chances of a mishap.

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Lam Chu v Tse Lum Wong [2004] HKEC 1149

a reasonably prudent driver would have made greater allowances for the
road and weather conditions and been able to control his vehicle so as to
avoid a collision (Burrell J).

NB If something is very unlikely, D may foresee the possibility of its

occurring, yet do nothing. This is because sometimes, reasonable
people do nothing.

(ii) Magnitude of the harm

Again, this is fairly self-explanatory. Where the risk (although small) is of

serious injury it becomes more reasonable to expect more assiduous
steps to be taken to ensure safety.

Paris v Stepney Borough Council [1951] AC 367

I see no valid reason for excluding as irrelevant the gravity of the damage
which the employee will suffer if an accident occurs … I cannot accept
the view neatly summarized by Asquith LJ … that the greater risk of
injury is, but the risk of greater injury is not, a relevant circumstance
(Lord Simonds).

(iii) Utility of D’s conduct

The fact that D is performing a socially useful function might help to

relax the standard of care.
Daborn v Bath Tramways [1946] 2 All ER 333

The purpose to be served, if sufficiently important, justifies the

assumption of abnormal risk.

[I]f all the trains in this country were restricted to a speed of 5 miles an
hour, there would be fewer accidents, but our national life would be
intolerably slowed down. The purpose to be served, if sufficiently
important, justifies the assumption of abnormal risk (Asquith LJ).

Watt v Hertfordshire County Council (1954) 1 WLR 835

The purpose to be served in this case was the saving of life … I agree
with Barry J [at first instance] that on the whole of the evidence it would
not be right to find that the employers were guilty of any failure of the
duty which they owed to their workmen (Singleton LJ).

(iv) The relative cost of precautions (economists talk of

opportunities foregone)

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Again, the reasonable man will only be expected to go to certain lengths
(in terms of personal expense) in order to avoid an accident.

Bolton v Stone [1951] AC 850

It seems to me that a reasonable man, taking account of the chances

against an accident happening, would not have felt himself called upon
either to abandon the use of the ground for cricket or to increase the
height of his surrounding fences (Lord Radcliffe, my italics).

Latimer v AEC Ltd [1953] AC 643

It is a matter of balancing the risk against the measures necessary to

eliminate it. (Denning LJ)

But should the cost of precautions measured against the ex-ante

assessment of liability to P be a relevant factor?

It means that accidents can be bought if they are economically efficient:

Posner.

G Calabresi, The Cost of Accidents: A Legal and Economic Analysis (Yale

UP, 1970).
G Keating, Reasonableness and Risk: Right and Responsibility in the Law
of Torts (OUP, 2023) Ch 2.

(v) Emergencies (not necessarily socially useful acts)

Generally, the courts will be sympathetic to one’s reacting to, or acting

in, an emergency situation.

Watt v Hertfordshire CC [1954] 1WLR 835

[The plaintiff] claimed that in the case of a happening such as this, if

there was not a vehicle fitted to carry the jack the sub-officer ought to
have telephoned to the fire station at St. Albans and arranged that they
should attend to the emergency. St. Albans is some seven miles away,
and it was said that an extra ten minutes or so would have elapsed if that
had been done. I cannot think that that is the right way to approach the
matter. There was a real emergency (Singleton LJ).
Chan Wai Ling v Tang Chi Ho [2004] HKEC 577

It may well be that with the benefit of hindsight, it was not necessary for
the defendant to have swerved his LGV to the right … [However] the
defendant’s action in also swerving to his right has to be judged and
looked at, not with hindsight, but in the agony of the dangerous situation

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 in which the defendant was placed and which was created wholly by the
appalling manoeuvre of the taxi driver (Suffiad J).

NB The standard is lowered but not eradicated.

Chu Fung Ping v Wong Wai Leung [2017] HKEC 1572

The defendant’s case is that, the Sunny [ie, the car in front] moved
suddenly and without warning and collided with his vehicle but … having
seen the Ford’s erratic manoeuvres, he should not have allowed the
distance between the Sunny and his vehicle to decrease from 20 metres
… in my view, he did not take evasive action early enough (Deputy Judge
Cooney).

NB It isn’t the case that just one of the above factors will determine the
level of care demanded of D. In fact, many may be in play in any
given case.

Lilley v Hong Kong and Kowloon Ferry Ltd [2012] 1 HKLRD 916

In determining whether or not there was any breach of duty, the court
must assess whether the risk of harm arising from the conduct or
omission complained of was real or fanciful, and the court does this by
assessing the likelihood of the risk materialising on the specific facts and
circumstances of the case before it, and by balancing the likelihood of the
risk materialising against the severity of the harm were it to materialise,
the cost and practicality of precautions, and the utility of the activity in
question (Deputy Judge Mimmie Chan).

(c) Attributes of D affecting the Standard of Care

(i) Introduction

The law cuts one no real slack, even where one’s inability to meet the
standard of care is not one’s own fault. It takes no account of personal
shortcomings!

Vaughan v Menlove (1837) Bing NC 468

When one takes account of D’s idiosyncrasies, one loses the objectivity
that is crucial in determining the standard of care.

But certain attributes of a class of persons (cf, an individual) might affect

the standard of care. There is evidence of this in the case law.

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(ii) D’s minority

Mullin v Richards [1998] 1 WLR 1304

The question for the judge is not whether the actions of the defendant
were such as an ordinarily prudent and reasonable adult in the
defendant's situation would have realised gave rise to a risk of injury, it is
whether an ordinarily prudent and reasonable 15-year-old schoolgirl in
the defendant's situation would have realised as much (Hutchinson LJ).

NB The standard in this case was still an objective one: the standard
for all 15 year olds.

Chan Kin Bun v Wong Sze Ming [2006] 3 HKLRD 208

(iii) D’s profession

The appropriate standard of skill is that expected of the ordinary

professional in that field.

Bolam v Friern HMC [1957] 1 WLR 582

The test is the standard of the ordinary skilled man exercising and
professing to have that skill (McNair J).

Thus, the same standard is applied to all doctors, accountants, engineers,

architects etc. And this approach has been overtly adopted in in HK, too.

Cheng Man Chi v Tam Kai Tai [2009] HKEC 205

what was done by the defendant was something which no reasonably

competent dental practitioner in the position of the defendant would have
done in the circumstances. To that end the Bolam test is satisfied (Suffiad
J).

But there are 2 exceptions

Exception 1
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

if, in a rare case, it can be demonstrated that the professional C opinion

is not capable of withstanding logical analysis, the judge is entitled to
hold that the body of opinion is not reasonable or responsible (Lord
Browne-Wilkinson).

Lee Hau Chi v Chung Chee Keung [2007] HKEC 1911

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Exception 2
Montgomery v Lanarkshire Health Board [2015] UKSC 11 (not treatment,
disclosure of info)

[Regardless of the Bolam test] [a]n adult person of sound mind is entitled
to decide which, if any, of the available forms of treatment to undergo,
and her consent must be obtained before treatment interfering with her
bodily integrity is undertaken. The doctor is therefore under a duty to
take reasonable care to ensure that the patient is aware of any material
risks involved in any recommended treatment, and of any reasonable
alternative or variant treatments [per Lords Kerr and Reed].
Non-professionals

The standard may be dropped for people who do things who are not
professionals and do not hold themselves out as being professionals.

Philips v William Whitely Ltd (1938) 1 ALL ER 566

It is not easy in any case to lay down a particular canon or standard by

which the care can be judged, but, while it is admitted here, and admitted
on all hands, that Mr Couzens did not use the same precautions of
procuring an aseptic condition of his instruments as a doctor or a surgeon
would use, I do not think that he could be called upon to use that degree
of care (Goddard J).

Chan Sze Wing v Tsang Pui Chong [2012] CHKEC 231

(iv) D’s specialist knowledge

Not only will the standard of care demanded be higher where D has some
special skill, so will it be higher if D is in possession of specialist
knowledge.

Baker v Quantum Clothing Group Ltd [2011] UKSC 17

[T]he company had a “clear awareness” by the early 1980s that exposure
to noise between 85 and 90dB(A) “could be expected to damage the
hearing of some workers to the extent that action was desirable at those
levels”. So … their appreciation that the code limit was no longer
acceptable was sufficient to found liability (Lord Dyson).

NB This can still be squared with the objective approach if one reads it
in terms of setting a standard for all employers with a higher than
average degree of knowledge.

(v) D’s insanity

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The matter is governed by a Court of Appeal case.

Dunnage v Randall [2016] PIQR P1

The courts have consistently and correctly rejected the notion that the
standard of care should be adjusted to take account of personal
characteristics of the defendant. The single exception in respect of the
liability of children should not, I think, be extended (Voss LJ).

But should insanity be a defence in its own right (even though it isn’t at
the moment)?

See J Goudkamp, “Insanity as a Tort Defence” (2011) 31 OJLS 727

(d) An Economic Approach to Breach

In the USA, economic analysis of tort law has been popular among many
scholars and some judges.

The idea is that the law should strive to achieve the most efficient results.

So, one will be permitted to cause accidents if they are judged to be

economically efficient (ie, the cost of avoiding harm is greater than the
expected cost of not taking the precaution).

This way, D spends less on accidents than on avoiding them. So D is

better off and his victims end up no worse off.

Since D is relatively wealthier this way; and since this true for D1, D2
and everyone in society (as potential defendants) society is better off.

United States v Carroll Towing Co 159 F 2d 169 (1947)

Judge Learned Hand expressed this economic approach to breach in the

following formula:

[I]f the probability be called P; the injury, L; and the burden, B; liability
depends upon whether B is less than L multiplied by P; ie, whether B<PL.
{liable if this is true}

See R Posner, Economic Analysis of Law (Aspen, 2011) ch 6 (recall, too,

efficient breach in contract).

Cf 1 E Weinrib, The Idea of Private Law (CUP, 1995) p149:

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 The cost of precautions is irrelevant … [The fact that] the cost to the
defendant of precautions would exceed the ex-ante quantification [of P’s
loss] does not exonerate the defendant from liability.

G Keating, Reasonableness and Risk: Right and Responsibility in the Law

of Torts (OUP, 2023) Ch 2.

C. Proving Fault

1. Introduction

Having established the standard, the next question is whether D met that
standard.

It is generally for P to prove that D has not done so (on the balance of
probabilities).

Abrath v N E Railway (1883) 11 QBD 44

Said in this case: “He who affirms must prove” (ie, if you allege
negligence you must prove it).

Section 62 of the Evidence Ordinance (Cap 8)

s. 62(1) In any civil proceedings the fact that a person has been convicted of an
offence by or before any court in Hong Kong shall, subject to subsection (3), be
admissible in evidence for the purpose of proving, where to do so is relevant to
any issue in those proceedings, that he committed that offence.

What this statute puts in place is the notion that if D has been convicted
of an offence, this fact may be used as evidence of wrongdoing in a civil
law case, unless the contrary is proved.

As such, it reverses the burden of proof.

Chan Mei Yee v Ng Tat Cheung [1992] HKEC 23

I am satisfied that the defendant has not discharged the burden placed
upon him by s.62 aforesaid and that the plaintiff has established the
defendant’s liability. I would accordingly find for the 1st plaintiff (Mayo
J).

3. Res Ipsa Loquitur

This is a Latin maxim meaning “the thing speaks for itself”.

C therefore doesn’t need to adduce evidence of D’s acts.

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Scott v St Katherine Docks (1865) 159 ER 665

(a) Three (supposed) Prerequisites to establish Res Ipsa

Loquitur

(i) The accident would not occur in the ordinary course of things (self-
explanatory);
(ii) D had exclusive control of thing causing harm;
(iii) There is no other plausible explanation of the cause of the harm
(virtually redundant, because if you know the cause there’s no need
to invoke RIL).

The first requirement does not present any great problems. The only
ones worth exploring are the second and third.

On the second requirement

Cassidy v Ministry of Health (1951) 2 KB 343

On the third requirement

Hu Yung Chuen v Wealth Sharp Co Ltd [1992] HKLY 1126

in the many authorities cited by…the Defendant, there are examples of

leakages of water which…occurred without negligence on the part of
anybody, and in the absence of evidence to exclude it, that possibility
remained open (Nazareth JA).

(b) Effect of Res Ipsa Loquitur

There are two possibilities:

(i) Reverses the burden of proof;

(ii) Raises a rebuttable inference of negligence.
On approach (i) it is for D to prove on the balance of probabilities that he
was not negligent.

On approach (ii) D needs only to raise a reasonable suggestion that there

was no negligence.

The most authoritative answer has been supplied by the Privy Council.

Ng Chun Pui v Lee Chven Tat [1988] RTR 298

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 It is misleading to talk of the burden of proof shifting to the defendant in
a res ipsa loquitur situation. The burden of proving negligence rests
throughout the case on the plaintiff. (Lord Griffiths)

NB It must always be possible to make an inference; and not the case

that an alternative explanation is clear on the facts of the case.

Fong Yuet Ha v Success Employment Services Ltd [2012] HKEC 540

There is no place in this case for the often indiscriminately pleaded

maxim res ipsa loquitur, which only applies in cases where the precise
cause of the incident is unexplained or cannot be shown but it is more
probable [than not] that it was the result of an act or omission of the
defendant … I am unable to draw any inference from Madam Fong’s
account of how she got injured that she would not have fallen but for
some negligence. (Deputy Judge Lisa Wong).

© John Murphy
August 2023

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