breach Flashcards
1
Q
the next step after claimant has proved the defendant owed them a duty of care
A
- the next step is to prove the defendant breached that duty,
- meaning the defendant acted carelessly towards the claimant,
2
Q
‘reasonable man test’
A
- key question asked by the court to determine whether a duty was breached:
“did the defendant behave as the reasonable person would have in the same circumstances”, - Blyth v Birmingham Waterworks (1856),
3
Q
objective standard
A
- any personal dfficulties or disabilities will not be taken into account,
- was made clear in Nettleship v Weston (1971),
- “the learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care”,
4
Q
professional persons
A
- where a particular defendant has a professional skill and the case involves the exercise of that skill they are expected to act competently,
- expected to exercise a normal level of skill for their profession,
5
Q
Bolam test
A
- Bolam v Freirn Hospital Management committee (1957),
- test is the standard of the ordinary skilled man exercising that special skill,
6
Q
children
A
- the conduct of a child d is tested in relation to the standard expected from a child of that age,
- Mullins v Richards -> would an ordinary, sensible 15 year old have foreseen the risk?
- Orchard v Lee -> accident caused by a 13 year old horseplay,
7
Q
tests to determine breach (risk factors)
A
- degree of probability that harm will be done,
- magnitude of likely harm -> personal characteristics of C,
- cost and practicality of preventing the risk,
- potential benefits to society of taking the risk,
8
Q
degree of probability that harm will be done
A
- care must be taken in respect of a risk, where it is reasonably foreseeable that harm may occur,
- Bolton v Stone - risk was not sufficient to warrant precautions,
9
Q
magnitude of likely harm
A
- court considers how serious potential injuries could be,
- Paris v Stepney Borough Council,
- the greater risk to claimant meant greater precautions should have been taken,
10
Q
cost and practicality of preventing the risk
A
- once risk has been identified as reasonably foreseeable the court considers whether precautions should have been taken,
- if cost of taken said precautions is disproportionate to the risk then the defendant will not be liable,
- Latimer v AEC - flooded factory floor,
11
Q
potential benefits of the risk
A
- the court must consider whether the risk has potential benefits to society - if it does they can vary the standard of care,
- Watt v Hertfordshire County Council - fire brigade case,
12
Q
breach flow chart (paragraph 1)
A
- to establish whether the d has breached their duty of care, d will be judged by the standard of care of the reasonable man carrying out the same activity - Blyth v Birmingham Waterworks,
- special considerations apply in the following situations:
. children - judged against standard expected of reasonable children of the same age (Mullins v Richards),
. experts/professionals - judged against standard of care of a ‘reasonable body of experts in the same field’ - Bolam Test,
. learners/trainees/inexperienced - judged against standard of care of reasonably competent qualified people - Nettleship v Weston,
13
Q
breach flow chart (paragraph 2)
A
- in assessing whether d has fallen below standard of care,
- court will weigh and balance 4 risk factors (use most relevant not all 4),
. degree of risk,
. potential seriousness of harm,
. practicality of taking precautions,
. social usefulness of activity,
14
Q
degree of risk
A
- how likely is the harm to occur?
- if harm is likely the court will expect defendant to take greater care to minimise or eliminate the risk,
- Bolton v Stone,
15
Q
potential seriousness of harm
A
- where there is potential for serious harm to occur then the court will expect the defendant to take greater care of the claimant,
- Paris v Stepney BC.
16
Q
practicality of taking precautions
A
- court will consider how easy it was in terms of cost and effort for the defendant to eliminate the risk,
- if relatively easy (little cost and effort) then the court will expect these precautions to be taken,
- Latimer v AEC Ltd,
17
Q
social usefulness of the activity
A
- if defendant is doing a socially useful activity ie responding to an emergency then the court will allow him to take greater risks,
- Watt v Hertfordshire CC,
18
Q
conclusion
A
- the defendant has/has not fallen below the standard of care because…
19
Q
causation
A
- as well as proving the d is owed a duty of care and breached it, we must also prove the breach caused the damage,
- we must prove the damage was not too remote -> must be reasonably foreseeable,
