Documentation:Torts/Breach of duty of care

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Index
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Breach of duty of care

Breach is the second of five elements of the tort of negligence. In a negligence suit, once the plaintiff has established that a duty of care was owed, they "must prove that the defendant did not meet the standard of care".[1] The plaintiff does this by establishing (1) what the relevant standard of care is, and (2) that the defendant's conduct fell below that standard.

Ascertaining the standard of care

The reasonable person with Professor Mayo Moran
This McGill Law Journal podcast featuring Professor Mayo Moran discusses "the shortcomings and limitations of the reasonable person standard."[2]

In this Western University lecture, Professor Mayo Moran challenges "the purported fairness and objectivity of tort law’s reasonable person standard and counselled its rejection in favour of a more robust standard of moral fault."[3][4]

When considering the standard of care, the courts will compare a defendant's conduct to that of a reasonable person "placed in the defendant’s position at the time of the incident in question."[1] This standard is objective, but it may be influenced by a number of factors including any relevant special knowledge, skill, or expertise of the defendant, extenuating personal circumstances, and the background statutory or regulatory rules.[5]

This "reasonableness standard applies regardless of whether the defendant is a government or a private actor".[6]

Reasonable person standard

The reasonable person, originally articulated as the reasonable man, is the standard against which courts compare a defendant's conduct to determine whether they were negligent.[1] This standard has been described in a number of ways, including these, as quoted in Duhaime's Law Dictionary[7]:

  • The British Columbia Court of Appeal in Levitt v. Carr said that "[t]he purpose of the reasonable man ... is to determine whether a particular plaintiff has failed, judged by a community standard, in the duty of care he or she owes himself or herself."[8]
  • In Director of Public Prosecutions v. Camplin, Diplock J. stated that the reasonable man "has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."[9]
  • The court in Carlson v. Chochinov averred that “[t]he ideal of that person exists only in the minds of men, and exists in different forms in the minds of different men. The standard is therefore far from fixed as stable. But it is the best all-round guide that the law can devise.”[10]

While that this standard may be influenced by some "objective" characteristics of a defendant, "particular moral characteristics such as recklessness, shyness, cultural or religious traits ... will not be attributed to the reasonable person in order to relax the standard of care either in common law or in civil law."[11]

Carrol Towing & the Learned Hand formula
This Quimbee video provides a summary of United States v. Carrol Towing.[12]

In a lecture at Western University, Professor John Goldberg critiques the Learned Hand formula.[13]


Learned Hand Formula

An interesting and influential approach that a US judge took to conceptualize the standard of care was what has become known as the Learned Hand Formula.[14] In United States v. Carrol Towing, Justice Learned Hand stated that a duty of care "is a function of three variables."[15] He framed the three variables in mathematical terms, being: the probability of harm arising to the plaintiff (P), the severity/gravity of the risk that plaintiff faced (L), and the burden/cost of precautionary measures that would be required of the defendant (B).[14]

"[I]n algebraic terms ... liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL."[14]

Under the Hand Formula, if the cost burden is less than the probability of harm multiplied by the severity of risk, then a defendant should be liable. Conversely, if the burden of precautionary measures is greater than the probability of harm multiplied by the severity of risk, there should be no liability.

It is important to note that, while this formula provides a useful way to conceptualize the standard of care, it is not applied systematically by courts as a way to assess whether or not there was a breach of duty in a negligence claim.

Relevance of statutes and government regulations

One of the factors which may alter the reasonable person standard is the statutory regime. However, it is important to note that this does not mean "that unexcused breach constitutes negligence per se giving rise to absolute liability."[16] Rather, "[p]roof of statutory breach, causative of damages, may be evidence of negligence" and "[t]he statutory formulation of the duty may afford a specific, and useful, standard of reasonable conduct."[17] This is to say, breach of statute alone is not sufficient to prove negligence, but it may be a useful tool. The inverse is also true, as "mere compliance with a statute does not, in and of itself, preclude a finding of civil liability."[18]

Moreover, the degree to which a statute is influential in assessing the appropriate duty of care "depends on the nature of the statute and the circumstances of the case."[19] Specifically, statutes will have less weight "in cases involving special or unusual circumstances".[19] Further, the when a statute is strict, "it is more likely to be found that compliance with the statute constitutes reasonable care and that no additional measures are required", but when "a statute is general or permits discretion ... mere compliance is unlikely to exhaust the standard of care."[20]

Jurisdictional comparison

Not all jurisdictions have approached breaches of statutory provisions in the same manner. While the United States and Canada follow the above approach, England has recognized "a new nominate tort of statutory breach."[21]

Special knowledge, skill and expertise

Another factor that may affect the relevant standard of care is where the plaintiff has special knowledge, skills, or expertise. For example, in Hill v. Hamilton-Wentworth Regional Police Services Board, the Supreme Court of Canada stated that in assessing negligence in a police investigation, the "standard of care is that of a reasonable police officer in all the circumstances."[22] It is important to note though that, even with the influence of such special knowledge, skill, and expertise, "[t]he standard is not perfection, or even the optimum, judged from the vantage of hindsight."[23]

The court has also found knowledge, skill, or expertise to be relevant in cases involving doctors, lawyers and other professionals.[24][25]

Extenuating personal characteristics

Age

A personal characteristic that the courts have allowed to influence the reasonable person test is age.[26] The rationale for this exception to the general rule of not relaxing the standard to adapt to a defendant's personal circumstance seems to be explained by Windeyer J, who averred: "I am not considering ‘the idiosyncrasies of the particular person’. Childhood is not an idiosyncrasy."[26] This is to say, because all individuals go through childhood, it is not an idiosyncrasy in the same way that moral characteristics are, and thus, it is appropriate to take age into consideration.

Professor Katsivela has observed that in the common law, minor defendants generally fall into three categories.[27] First, minors under, approximately, six years of age, are "exempt from liability" because they cannot be said to act with legal capacity.[27] Second, minors who are "engaged in an adult activity are held to the same standard of care as adults."[27] Finally, minors "six years of age and over and who are not engaged in an adult activity are subject to a relaxed standard of care".[27] This relaxed standard entails comparing the minor to "a reasonable child of: i) his or her age; possessing similar ii) intelligence and iii) experience"—however, these elements are not systematically relied upon.[27]

Mental illness

One personal characteristic that may influence a defendant's liability in negligence is mental illness.[28] In exceptional situations a defendant who had no capacity over their decision-making may "be relieved of tort liability".[28] The Alberta Court of Appeal in Fiala v. MacDonald laid down the following test:

Test for tort liability in cases of defendants suffering from mental illness[29]
In order to be relieved of tort liability when a defendant is afflicted suddenly and without warning with a mental illness, that defendant must show either of the following on a balance of probabilities:
(1) As a result of his or her mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time; or
(2) As a result of mental illness, the defendant was unable to discharge his duty of care as he had no meaningful control over his actions at the time the relevant conduct fell below the objective standard of care.

Applying the standard of reasonableness

Bolton v. Stone summarized
This Quimbee video provides a summary of Bolton v. Stone.[30]

Once the appropriate standard has been established, one must apply the standard to the actions of the defendant in the context of the facts established at trial. When considering if the duty of care was breached, the courts will weigh a number of considerations: the probability of harm, the severity or gravity of risk, the burden of precautionary measures, the social value of the activity that caused harm, and any relevant customs, industry standards, or legislative schemes.[31]

Probability of harm

One factor to consider when assessing if a defendant's behaviour breached the standard of care is the probability of harm arising from the defendant's conduct. The higher the probability of harm, the more likely the defendant breached the standard of care, and the lower the probability, the less likely they breached the standard of care.[32]

This concept is illustrated by the comparison of Bolton v. Stone and Miller v. Jackson. [33][34] Both cases involved plaintiffs pursuing claims of negligence regarding cricket balls going out of bounds.[35][36] However, while the plaintiffs were successful in the latter case, they were not in the former.[37][38]

In the news
Cricket in the Daily Mail
Lewis v. Wandsworth LBC was featured in the Daily Mail article "Woman struck in the eye with a cricket ball at local park loses £17k High Court battle after claiming she thought amateur players used 'soft balls'".[39][40]
The photo depicts the cricket pitch at Battersea Park
The woman was hit while passing the cricket pitch at Battersea park, pictured here.[40]

A notable difference between the two cases was the likelihood of the incidents. In Bolton v. Stone the court found that the risk of a ball going out of bounds and hitting someone was "extremely small".[41] Conversely, in Miller v. Jackson cricket balls had frequently landed in the yards of the house and, thus, the court regarded the situation as "a series of incidents, or perhaps a continuing failure to prevent incidents from happening, coupled with the certainty that they are going to happen again."[42] This juxtaposition illustrates that a higher probability of harm suggests negligence while a low probability suggests the opposite.

Severity/gravity of risk

The greater the severity of risk to the plaintiff arising from the defendant's conduct, the more likely the defendant breached the standard of care. Conversely, the less severe the risk, the less likely they breached the standard of care.[43]

In The Wagon Mound No 2, when vessel was leaking oil into Sydney Harbour and the ship engineers did nothing to stop it, the ship owners were liable for damages caused by an explosion that followed from the oil catching fire on the water.[44] This was, in part, due the fact that, while the risk of the oil igniting was very small, "if it did [ignite], serious damage to ships or other property was not only foreseeable but very likely."[45]

Burden of precautionary measures

The burden on the defendant of taking precautionary measures must also be considered when assessing if there was a breach of the standard of care. When the burden of taking precautionary steps is low and the defendant did not take them, it is more likely that a defendant's conduct fell below the standard of care. The higher the burden, the more likely it is that the defendant met the standard of care even if they did not do everything in their power to avoid the harm.[46]

In Goldman v. Hargrave, the plaintiff's property was damaged after a tree on the defendant's property caught fire. Rather than extinguish it, the defendant left it to burn out. The winds then swept the fire onto the plaintiff's property.[47] The court found that an individual "should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more."[48] In this case, it was not proven that the defendant could not have put out the fire and the defendant was found to be liable in negligence.[48]

Social value of activity

Another factor to consider in determining whether the defendant breached the standard of care is the social value of the activity in question. This is to say "[o]ne must balance the risk against the end to be achieved."[49] Where a risky activity has high social utility, generally courts will be more inclined to find that the defendant met the standard of care.[49]

In reference to a firefighter who had been injured while the department sought to save a woman's life, Denning LJ in Watt v. Hertfordshire CC stated:

If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the Fire Service.[49]

Custom and industry practice

When assessing breach, one should also consider the customs and standards of the relevant industry to assess if the defendant's conduct fell short of the standard of care.

In Hill v. Hamilton-Wentworth Regional Police Services Board, one of the alleged occasions of police investigative negligence was with regards to a photo line-up.[50] The line-up "consisted of one aboriginal suspect, Hill, and eleven Caucasian foils"; however, the court maintained that "Hill did not in fact stand out".[51] Controversially,[52] because at the time "there were 'no rules' and 'a great deal of variance in practice right up to the present time' in relation to photo lineups" among police departments, the Supreme Court held that "it cannot be concluded that the photo lineup was unreasonable, judged by 1995 standards."[50] So, although "[a] reasonable officer today might be expected to avoid lineups using foils of a different race than the suspect," the defendant's conduct met the industry standard at the time of the allegations concerned, with regards to both the line-up and the other impugned actions. In that case, the officers' conduct was found not to fall below the standard of the reasonable police officer, and so the plaintiff's negligence claim failed.[53]

Conversely, in White v. Turner, the defendant was a surgeon, and the court relied on the testimony of another doctor to establish that the defendant had not acted in accordance with "standard practice" by failing to do a "customary check".[54] Because of this failure, the court found the defendant had breached the duty of care, and thus, was liable in negligence.

Statutory and regulatory background

A final consideration is any relevant statutory or regulatory scheme. Breach of a statutory scheme is relevant and may be indicative of carelessness or care taken (respectfully), but it not in itself determinative proof of either breach or fulfilment of a duty of care in negligence.[55]

For example, though the defendant breached the statute in R v. Saskatchewan Wheat Pool, the claim in the tort of negligence was unsuccessful, as the Supreme Court found "no evidence at trial of any negligence or failure to take care".[56]

Meanwhile, although the defendant had complied with the statute in Ryan v. Victoria (City), they were still found to be liable as "[t]heir compliance with regulatory standards did not replace or exhaust" their obligation "to exercise reasonable care in the circumstances."[57] Because the statute granted the defendant discretion, "[i]n exercising that discretion, they were bound by the common law and were required to take all reasonable steps to minimize foreseeable harm," and by failing to account for the circumstances of the particular area in which they were operating, they fell short of this requirement and were negligent.[58]

Discussion questions

Breach of duty of care
In the Australian podcast Law of Torts, host Kim Bailey discusses the breach of duty of care.[59]

The reasonable person standard

  • Why has the common law constructed a reasonable person standard of care? Is it a sound standard? Is it really an objective standard? Consider the use of the reasonable person in McHale v. Watson with regards to gender equity, for example.
  • Is the Learned Hand formula a useful tool? Why or why not?
  • Is there any better alternative to the reasonable person standard? What might be the implications of courts adopting such alternative standards. Consider, for example, The Emotional Woman, in which Allen "argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct" and "emotion is crucial to sound decision-making".[60]

Effect of special knowledge, skill, and experience

  • Why are the courts willing to alter the standard of care in cases of special knowledge, skill and experience? Do you think this is necessary or appropriate?
  • Who would benefit if the standard was not altered in such a way?

Role of statute

  • Should Canada follow England's lead and develop a tort of statutory breach, or is the role that statutory breach plays in negligence appropriate and adequate?
  • What is the difference in finding liability based on a statute like BC's Privacy Act and finding liability based on a statute like the Canada Grain Act in R v. Saskatchewan?

Quiz


  1. ↑ 1.0 1.1 1.2 Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 539 (§14.1).
  2. ↑ McGill Law Journal (23 March 2022). "Deconstructing the Reasonable Person".
  3. ↑ Western Law. "Mayo Moran Lectures on Tort Law's Reasonable Person".
  4. ↑ Western University (9 February 2017). "Mayo Moran, 'Rethinking the Reasonable Person". YouTube.
  5. ↑ Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 539–40 (§14.1).
  6. ↑ Nelson (City) v. Marchi, 2021 SCC 41 (§14.1.2.3) at para 92.
  7. ↑ "Reasonable Man". Duhaime's Law Dictionary. (§14.1.1).
  8. ↑ Levitt v. Carr, 1992 CanLII 1086 (BCCA).
  9. ↑ Director of Public Prosecutions v. Camplin, [1978] UKHL 2 (BAILII).
  10. ↑ Carlson v. Chochinov, 1947 CanLII 242 (MBKB).
  11. ↑ Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 540 (§14.1).
  12. ↑ Quimbee (19 October 2020). "United States v. Carroll Towing Co. Case Brief Summary | Law Case Explained". YouTube.
  13. ↑ Western University (13 March 2017). "John Goldberg, 'Sleight of Hand: Negligence, Ordinary Care, and Cost-Benefit Analysis'". YouTube.
  14. ↑ 14.0 14.1 14.2 United States v. Carrol Towing, 159 F (2d) 169 (2nd Cir 1947) (§14.1.1.3).
  15. ↑ United States v. Carrol Towing, 159 F (2d) 169 at para 7 (2nd Cir 1947) (§14.1.1.3).
  16. ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.1.2.1) at para 42.
  17. ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.1.2.1) at para 42 [emphasis added].
  18. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.1.2.2) at para 29.
  19. ↑ 19.0 19.1 Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.1.2.2) at para 39.
  20. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.1.2.2) at para 40.
  21. ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.1.2.1) at para 12.
  22. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§14.1.3.2) at para 68.
  23. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§14.1.3.2) at para 73.
  24. ↑ Armstrong v. Ward, 2019 ONCA 963, rev’d 2021 SCC 1 (§14.1.3.3) at para 86.
  25. ↑ Gartside v. Sheffield, [1983] NZCA 37 (§14.1.3.1) at para 73.
  26. ↑ 26.0 26.1 McHale v. Watson, [1966] HCA 13 (§14.1.4.1) at para 4.
  27. ↑ 27.0 27.1 27.2 27.3 27.4 Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 541 (§14.1).
  28. ↑ 28.0 28.1 Fiala v. MacDonald, 2001 ABCA 169 (§14.1.4.2) at para 49.
  29. ↑ Fiala v. MacDonald, 2001 ABCA 169 (§14.1.4.2) at para 49.
  30. ↑ Quimbee (25 January 2021). "Bolton v. Stone Case Brief Summary | Law Case Explained". YouTube.
  31. ↑ Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 544 (§14.2).
  32. ↑ Booth v. City of St Catharines, 1948 CanLII 10 (SCC) (§14.1.1.1) at paras 19, 38, 52
  33. ↑ Bolton v. Stone, [1951] UKHL 2 (BAILII) (§14.2.1.2).
  34. ↑ Miller v. Jackson, [1977] EWCA Civ 6 (BAILII) (§14.2.1.3).
  35. ↑ Bolton v. Stone, [1951] UKHL 2 (BAILII) (§14.2.1.2) at para 2.
  36. ↑ Miller v. Jackson, [1977] EWCA Civ 6 (BAILII) (§14.2.1.3) at para 32.
  37. ↑ Bolton v. Stone, [1951] UKHL 2 (BAILII) (§14.2.1.2) at paras 7, 10, 15, 24, 28.
  38. ↑ Miller v. Jackson, [1977] EWCA Civ 6 (BAILII) (§14.2.1.3) at para 36.
  39. ↑ Robinson, James (27 November 2020). "Woman struck in the eye with a cricket ball at local park loses £17k High Court battle after claiming she thought amateur players used 'soft balls'". Daily Mail.
  40. ↑ 40.0 40.1 Lewis v. Wandsworth LBC, [2020] EWHC 3205 (QB) (§14.2.1.4).
  41. ↑ Bolton v. Stone, [1951] UKHL 2 (BAILII) (§14.2.1.2) at para 24.
  42. ↑ Miller v. Jackson, [1977] EWCA Civ 6 (BAILII) (§14.2.1.3) at paras 21, 36.
  43. ↑ Paris v. Stepney, [1950] UKHL 3 (BAILII) (§14.2.2.1) at paras 12, 26, 28.
  44. ↑ Overseas Tankship v. The Miller Steamship, [1966] UKPC 10 (BAILII) (§14.2.2.2) at paras 1, 36 [The Wagon Mound No 2].
  45. ↑ Overseas Tankship v. The Miller Steamship, [1966] UKPC 10 (BAILII) (§14.2.2.2) at paras 33, 35 [The Wagon Mound No 2].
  46. ↑ Goldman v. Hargrave, [1966] UKPC 12 (BAILII) (§14.2.3.1) at para 24.
  47. ↑ Goldman v. Hargrave, [1966] UKPC 12 (BAILII) (§14.2.3.1) at paras 2–4.
  48. ↑ 48.0 48.1 Goldman v. Hargrave, [1966] UKPC 12 (BAILII) (§14.2.3.1) at para 24.
  49. ↑ 49.0 49.1 49.2 Watt v. Hertfordshire CC, [1954] EWCA Civ 6 (BAILII) (§14.2.4.1) at para 11.
  50. ↑ 50.0 50.1 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§14.2.5.1) at para 80.
  51. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§14.2.5.1) at para 79.
  52. ↑ "See the summary of Hill's case on the Canadian Registry of Wrongful Convictions".
  53. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§14.2.5.1) at para 80–81, 105.
  54. ↑ White v. Turner, 1981 CanLII 2874 (ONSC) at paras 40–41.
  55. ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.2.6.1) at para 41.
  56. ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.2.6.1) at paras 41, 42.
  57. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.2.6.2) at paras 50, 58.
  58. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.2.6.2) at para 50.
  59. ↑ Bailey, Kim (24 Sep 2021). "Breach of duty of care". LAW114 - Law of Torts – via TuneIn.
  60. ↑ Allen, Alena M. (2021). "The Emotional Woman". North Carolina Law Review. 99 (4).
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