2. Negligence: Breach of Duty

Question 1

What two-stage test will be considered by the courts when assessing whether a defendant has breached their duty of care?

Answer 1

(1) how the defendant ought to have behaved in the circumstances (ie. standard of care) - question of law
(2) whether the defendant’s conduct fell below this standard (question of fact)

Question 2

What threshold must the defendant reach when determining the standard of care they should have adhered to?

Answer 2

The standard of the ‘reasonable person’

Question 3

Explain features of the ‘reasonable person’ test

Answer 3

• test is impersonal (not reliant on what the defendant actually witnessed)
• not a question of whether the defendant ‘did their best’ but whether they came up to the standard of the reasonable person

Question 4

Reasonable person test for skilled defendants

Answer 4

Principle in Bolam: apply to anyone who exercises a special skill
- person is judged according to the degree of skill or competence to be expected from a person with that special skill
- As long as the defendant’s actions are supported by a REASONABLE body of professional opinion they will generally not be negligent
- but it is for the court to ultimately decide

Question 5

Reasonable person test: Under-skilled defendant

Answer 5

Nettleship:
- learner driver is expected to reach standard of the reasonably competent driver
Wilsher v Essex:
- no allowance should be made for inexperience of a junior doctor (must show level of competence befitting a doctor holding the same post)

Question 6

Reasonable person test: for those completing ‘odd jobs’ around the house

Answer 6

• courts demand a certain level of skill from defendant householder
• if an amateur tackles (unaided) a job exceeding their capacity in doing something normally done by a professional, householder is likely to be judged as negligent in attempting it in the first place

Question 7

Defendant completing a task (which requires certain professional skill) without holding themselves out as having such skill:

Answer 7

Must meet minimum standard required by the task undertaken. If they undertake a task which requires a special skill which they do not possess, that in itself is likely to be negligent.

Question 8

Standard of Care: child defendants

Answer 8

• expected to show such care as can be reasonably expected of an ordinary child of the same age
• very young children are rarely found liable (less likely they are able to foresee harm to others)

Question 9

Can children under 18 be sued?

Answer 9

Not unless they have an adult to represent them (ie. litigation friend)
- which could be a parent

Question 10

When assessing whether a defendant has fallen below a reasonable standard of care, what will the court weigh up?

Answer 10

1. risk created by defendant’s activities and
2. precautions which defendant ought to reasonably have taken in response to that risk

Question 11

Magnitude of Risk, when is it relevant and what does it consist of?

Answer 11

Will always be considered by courts to decide who is at fault:
1. how likely was it that the defendant’s actions could cause an injury
2. If an injury was caused, how serious was it likely to be?

Question 12

General Rule wrt the likelihood of an injury occurring (magnitude of risk)

Answer 12

The greater the chances of the defendant’s activity causing injury to the claimant, the more
precautions the defendant must take.
- rare events may still require precautions
- but ‘fantastic possibilities’ may not

Question 13

What is the rule wrt the risk of the injury / gravity? (wrt Magnitude of the risk)

Answer 13

The more serious the possible harm to the claimant, the more care that the defendant must take

Question 14

Does a defendant have a defence if they cannot afford to take precautions to protect against a risk?

Answer 14

No, impecuniosity is not a defence.

Question 15

What if the defendant’s purpose (for their actions) is in the public interest?

Answer 15

If the behaviour is in the public interest, they are less likely to be held liable for negligence
- this determines the degree of risk that is justifiable
- but, saving a life would not allow defendant to take just ANY risk

Question 16

How might a defendant escape liability?

Answer 16

1. If their actions complied with an accepted trade practice (which is not negligent)
2. If they complied with the current standard of knowledge in their practice

Question 17

Negligence: who has the burden of proving that the duty of care was breached? what is the burden?

Answer 17

The claimant, ‘on a balance of probabilities’
- more likely than not that the defendant was in breach of the duty of care

Question 18

What is the most common way that a claimant could prove a breach of duty using evidence?

Answer 18

1. Calling witnesses of fact who saw the accident
2. Expert witnesses who can attest to the normal practice / level of precautions

Question 19

What if there are not witnesses to the claimant’s accident / no expert witnesses to call as evidence. How could the claimant prove negligence?

Answer 19

The claimant may (very small likelihood) be able to rely on ‘Res Ipsa loquitur’ (the thing speaks for itself), allowing the courts to draw an inference of negligence against the defendant without hearing detailed evidence

Question 20

When can a claimant rely on ‘Res Ipsa loquitur’?

Answer 20

3 Conditions:
1. Thing causing damage must be under control of the defendant (or someone for whom the D is responsible)
2. accident must be such as would not normally happen without negligence
3. Cause of accident must be unknown to claimant (no direct evidence of failure by the defendant)

Question 21

If the claimant successfully invokes ‘Res Ipsa Loquitur’, how must the defendant respond?

Answer 21

• this maxim creates a prima facie inference of negligence against the D
• D has to provide a reasonable explanation of how the accident could have occurred without negligence
• D must provide evidence showing:
  a. how accident actually happened (and how this was not due to negligence)
  b. if they cannot show a. they must prove that they had at all times used all reasonable care

Question 22

What is the effect of the Civil Evidence Act 1968?

Answer 22

s 11: A defendant who has been convicted of a criminal offence, is presumed, in any subsequent civil proceedings, to have committed that offence

Question 23

How does the Civil evidence Act 1968 help the claimant in a negligence claim?

Answer 23

• If defendant has been predicted of a criminal offence involving ‘careless conduct’ in relation to the negligence claim, this can form the body of evidence suggesting that the current careless conduct took place
• conviction must directly relate

Question 24

When deciding whether the defendant achieved the required standard of care on the facts - what two sets of factors are relevant?

Answer 24

1. Magnitude of risk factors
2. Reasonable precautions factors

Question 25

Magnitude of risk factors:

Answer 25

a. likelihood of injury occurring
b. likelihood of serious injury

Question 26

Reasonable precautions factors

Answer 26

a. cost and practicality of precautions
b. defendant’s purpose
c. common practice
d. current state of knowledge