2B.2.3 Breach of duty Flashcards
Once it has been showed that a duty of care is owed, what must the C do next?
Prove the duty of care had been breached.
Different standards of care
- Reasonable person
- Above the reasonable person
- Lower than the reasonable person
What is the reasonable person?
The standard is the objective standard of the “reasonable person” (average, normal person).
This is “The man on the Clapham Omnibus” / The ordinary man on the street.
Who is lower than the reasonable person?
- Learners
- Children
- Inexperienced people
- People with special needs
Who is higher than the reasonable person?
Highly skilled professionals.
e.g. Doctors
Which case established the special standard of care?
Bolam v Friern Hospital (1957)
Bolam v Friern Hospital (1957)
C signed a consent form for electro-convulsive therapy but was not warned this procedure could potentially cause bone damage. C experienced bone damage (broken pelvis).
This was judged by the standard of the reasonable doctor and because most doctors would have used the same treatment, no duty of care was owed.
The case led to the following questions:
- Does the Ds conduct fall below the standard of the ordinary competent member of that profession?
- Is there a substantial body of opinion within the profession that would support the course of action taken by the D?
Montgomery v Lanarkshire Health Board (2015)
C was not advised of the risks of the baby developing cerebral palsy during pregnancy.
Held: D under a duty to disclose the risks of a major obstetric emergency, which involves significant risks to the mother’s health and obtain consent.
Which case altered the approach from Bolam v Friern?
Montgomery v Lanarkshire Health Board (2015)
Case for standard of care owed by a learner
Nettleship v Weston
Nettleship v Weston
Nettleship v Weston: A learner driver hit into a lamppost during a driving lesson.
Held: learner drivers should be judged at the standard of the reasonable driver, NOT the reasonable learner driver.
What standard of care would a junior doctor owe?
The same principle as Nettleship v Weston would apply.
So it would be the standard of the reasonable doctor.
What standard of care would a child owe?
A lower standard of care with the exception of Mullin v Richards (standard of the reasonable child of the same age)
Mullin v Richards
15-year-olds were fencing with rulers. One snapped, blinding one of the girls.
It was held: Standard of the reasonable child of the same age.
Magnitude of risk
Magnitude = Likelihood + Seriousness
- How likely was this harm to happen?
- If it happened, how serious would it be?
Case for likelihood
Bolton v Stone (1951) & Miller v Jackson (1977)
Case for seriousness
Paris v Stepney Borough Council (1951)
Case for likelihood and seriousness
Haley v London Electricity Board (1965)
Bolton v Stone (1951) & Miller v Jackson (1977)
Likelihood of harm:
- Cricket matches where balls had been hit out of the grounds causing damage.
- Bolton = Only happened 6 times in 90 years so no breach of duty established.
- Miller = Happened 8-9 times per seasons so a breach of duty was established.
Paris v Stepney Borough Council (1951)
Employee was blind in one eye. Mechanic was given no protection for eyes. Metal went into his only good eye, blinding him completely. A higher duty of care was owed as the seriousness of harm was higher. Also, a higher standard of care is owed to someone with a pre-existing condition.
Held: Where the risk is small, Ds will not have to take as great precautions.
Haley v London Electricity Board (1965)
Electricity cables ran in a trench along a path. There were signs but no barriers. A blind person fell into the trench. Held: D owed a duty and the magnitude of risk was higher because blind people were known to use that roads. A special standard of care because claimants has special characteristics.
Precautions
The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk.
Case for precautions
Latimer v AEC (1953)
Latimer v AEC (1953)
A factory floor was flooded with oily liquid, leaving it slippery. AEC put sawdust down but did not have enough to cover the whole floor.
The court ruled that it was not practicable for AEC to cover the whole floor and deemed it disproportionate based on the small risk. (E.g. “Using a sledgehammer to open a nut”).
Unknown risk
If the risk of harm is not known, there can be no breach.
Case for unknown risk
Roe v Minister of Health (1954)
Roe v Minister of Health (1954):
It was not known to science that invisible cracks could occur in the glass tubes. This caused anaesthetic to become contaminated by the cleaning solution. C was paralysed by the contaminated anaesthetic.
Held: no risk, if risk is unknown.
Risk in an emergency
In an emergency, greater risks can be taken, and lower standard of care can be accepted. Courts take a realistic view of dealing with emergencies.
- They accept in hindsight; the situation could have been dealt with differently but accept that speedy action was taken without the benefit of hindsight.
- E.g. Watt v Hertfordshire County Council (1954)
Social value v Risk
Risks must be proportionate to social value.
- E.g. An Ambulance jumping a red light, Police cars speeding
Cases for social value v risk
- Watt v Hertfordshire County Council
- Day v High Performance sports (2003)
Watt v Hertfordshire County Council
C was injured by the wrong equipment used by fire service.
Held: no breach as the social value of saving life was worth taking higher risk with equipment.
Day v High Performance sports (2003)
A climber got stuck on an indoor wall. The manager tried to rescue her but she fell.
Held: no breach of duty as it was an emergency and the social value of saving a life was worth the risk.
Proving breach of duty
- The burden is on the claimant to prove the breach on the balance of probabilities.
- It may be res ipsa loquitur, which means “it speaks for itself” (it’s obvious).
Case for duties for acts by 3rd parties
Smith v Littlewoods (1987)
Smith v Littlewoods (1987)
A cinema was burned down by arsonists, which burned down the next-door café. The claim failed. There is a general duty, unless:
- There is a special relationship established.
- The defendant negligently created danger and reasonably foreseeable that the 3rd party would interfere.
- The defendant knew the 3rd party had created risk and didn’t take appropriate steps to stop it.
