3 Negligence 2: Breach of Duty

Question 1

Bolton v Stone [1951]

Answer 1

Probability that the injury will occur and the more serious the potential injury
The claimant was hit on the head outside her house with a cricket ball hit by a player from an adjacent cricket pitch
Generally, the more serious the potential injury, the more likely the defendant will be found to have fallen below the required standard of care should it materialise

Question 2

Nettleship v Watson [1971]

Answer 2

An objective standard of care
A learner driver
The CoA held that all drivers, including those learning, have the same standard of care (the care expected of an experienced, skilled and careful driver). The claimants damages were reduced by 50% for contributory negligence as he was jointly controlling the car at the time of the accident.

Question 3

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) (No 2) [1967]

Answer 3

A balancing act
The defendants carelessly spilled oil into the harbour where it accumulated. A fire quickly destroyed the wharf and the claimants’ vessels.
The Privy Council held that although the chance of the oil catching alight was a very low risk, it was a real one. There was no justification for the defendant’s failure to take steps to eliminate it given how easy it was for them to prevent the spillage (had they taken reasonable care).
The defendants had fallen below the standard of care required – the reasonable man would have taken precautions

Question 4

Legislation?

Answer 4

The Compensation Act 2006 - compensation culture
s1 requires the courts to have regard to the wider impact of their assessment of the appropriate standard of care
Social Action, Responsibility and Heroism Act 2015 (SARAH)

Question 5

Barnett v Chelsea and Kensington Hospital Management Committee [1969]

Answer 5

Causation
A doctor failed to properly examine a man when he presented himself at the hospital. It transpired that the man was suffering from arsenic poisoning from which he subsequently died.
The doctor admitted negligence, but said that he had not caused the man’s death. Even if he had acted properly, the man would have died anyway. It could not be ‘but for’ the doctor’s negligence the man would not have died.
The doctor could not be held liable.

Question 6

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) No 1 [1961]

Answer 6

Oil leak – set alight destroying the wharf and nearby ships.

At first instance the damage caused by the oil itself was deemed reasonably foreseeable but damage to the claimant’s property caused by the fire would not have been foreseeable to a reasonable person.

(No 1) established a far more defendant-friendly test. Following the case the question asked in order to establish whether the claimant’s harm is too remote is: was the kind of damage suffered by the claimant reasonably foreseeable at the time the breach occurred? This remains the primary test for remoteness of damage in negligence