Breach of the Duty of Care

Abstract

Under the heading of breach of a duty of care the question is not whether the defendant should be held liable for her negligence (which is the question in relation to duty, causation and remoteness), but whether the defendant was in fact negligent in the first place. Negligence consists in falling below the standard of care required in the circumstances to protect others from the unreasonable risk of harm. This is judged in relation to the position in which the defendant found herself: it is easy to be wise after the event, but the court should not let hindsight influence its judgment as to what the defendant ought to have done in the circumstances. It follows that, where knowledge of the risks involved in particular activities has developed over the course of time, the defendant’s conduct should be assessed in the light of the state of knowledge at the time she acted, not that at the date of trial. In Roe v. Minister of Health [1954] 2 QB 66, the plaintiffs had become paralysed after being injected with anaesthetic which had been contaminated by disinfectant. The anaesthetic had been stored in ampoules placed in the disinfectant; the latter had seeped into the ampoules through invisible cracks. At the date of the injuries, 1947, this was not generally considered possible. In the Court of Appeal, Denning lj stressed that developments in scientific knowledge should be ignored in assessing the culpability of the defendants (p. 84): ‘We must not look at the 1947 accident with 1954 spectacles.’