2. Breach of duty Flashcards
What are the two stages in determining whether there has been a breach of duty?
Standard of care-question of law
Whether the D has fallen below that standard-question of fact
What is the usual test for the standard of care?
Reasonable person test-objective. The court will look at the circumstances the D faced and ask what the reasonable person would have had in contemplation.
What precedent did Nettleship v Weston (1971) hand down in relation to breach of duty?
A learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for lack of experience, the act of driving set the standard and not the actor.
What precedent did Wilsher v Essex AHA (1986) hand down in relation to breach of duty?
A junior doctor was judged according to the act he was undertaking, not his level of inexperience. A lower standard of care does not apply to those training within a profession.
What precedent did Condon v Basi (1985) hand down in relation to breach of duty?
Higher degree of care required of a first division footballer than a local league player. The standard of care in competitive sports is objective in differing circumstances.
What is the professional standard of care?
The standard is that of the ordinary reasonable man exercising and professing to have that special skill-Bolam v Friern Hospital (1957).
What is the standard of care required of children?
The standard required will be that of the reasonable child of the D’s age carrying out that act-Mullins v Richards (1998).
In this case, it was determined that schoolgirls couldn’t have foreseen the risk of injury from play fighting with rulers as the practice was common and not banned in school. They did not fall below the standard.
What is the standard of care required of a driver who is aware that his consciousness has been impaired?
The standard of the reasonably competent driver-Roberts v Ramsbottom (1980).
In this case, D unknowingly suffered a stroke before he drove into town but was aware his consciousness had been impaired. It was held that he was negligent as he should have stopped driving as soon as he realised he was affected.
What is the standard of care required of a driver who is unaware he is suffering a condition that impairs his ability to drive?
The standard of the reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive-Mansfield v Weetabix Ltd (1998).
In this case, a lorry driver crashed his vehicle after suffering a hypoglycaemic attack. There was no evidence to suggest that the driver knew his ability to drive was impaired.
What are the key elements the court consider when deciding if a defendant has fallen below the standard of care expected of them?
-Likelihood of harm
-Magnitude of harm
-Practicality of precaution
-Benefit of the defendant’s conduct
In relation to the likelihood of harm, describe the outcome of Bolton v Stone (1951) and Haley v London Electricity Board (1964).
The more likely someone is to get injured, the more likely it is that there will be a breach.
Bolton v Stone (1951): C injured by a cricket ball, which had happened 6 times in 30 years previously. There was also a 7 foot high fence around the ground. Chance of injury was slight therefore no breach.
Haley v London Electricity Board (1964): D had not taken precautions to protect a blind person from a hole they dug. The risk was not so small that it should be ignored-breach was established.
In relation to the magnitude of harm, describe the outcome of Paris v Stepney BC (1951).
If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.
Paris v Stepney BC (1951): D failed to provide protective goggles to the C who only had one good eye. C became blind when a piece of metal went into his good eye-breach was established as the consequences of any injury were serious (complete loss of sight).
In relation to the practicality of precautions, describe the outcome of Latimer v AEC Ltd (1953).
It is necessary to ascertain how easily the risk could have been avoided and to balance the cost/practicality of these precautions against the severity of the risk.
Latimer v AEC Ltd (1953): D’s factory floor became slippery after a flood and the C slipped. D had taken some precaution by laying sawdust but the only way to guarantee safety would’ve been to close down the factory-breach not established as closure was not justified given the small risk of injury.
In relation to the benefit of the defendant’s conduct, describe the outcome of Walt v HCC (1954).
The value to society of the defendant’s activity is a factor the courts consider. If the D has taken a risk with the aim of preserving/protecting life, this may be justified.
Walt v HCC (1954): a fireman was injured in a fire engine on the way to an emergency after equipment had not been properly secured. There was no breach at the risk of injury was small and ultimate aim of saving life justified the risk.
What does s1 Compensation Act 2006 state in relation to negligence claims?
A court may have regard to whether a requirement to take steps to meet a standard of care might:
a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
b) discourage persons from undertaking functions in connection with a desirable activity
