Breach Flashcards
What are the two stages of ‘breach of duty’?
- Standard of care
2. Establishing whether the D has fallen below that standard of care
Key elements of the standard of care test?
- Reasonable man test (or professional standard/lower standard (children/illness))
- Objective nature of the test
- Act, not the actor
Key elements of establishing a breach? i.e. the factors? (there are 8)
1 Usual or common practice 2 Benefit of D's conduct 3 Likelihood of harm 4 Sport 5 Magnitude of harm 6 'State of art' defence 7 Practicality of precautions 8 Breach cf. errors of judgment
What’s meant by ‘usual or common practice in the context of professional negligence’?
The general principle is that a professional will NOT be in breach of duty if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that field (Bolam).
Does not apply when a medial professional fails to advise a patient of risks. The test of materiality applies instead.
Where was the ‘reasonable man’ concept established?
Blyth v Birmingham Waterworks (1856)
Who is the reasonable man? What are the cases?
Clapham Omnibus - Hall v Brooklands Auto Racing [1933]
Majority of people would have behaved this way - AC Billings & Sons Ltd v Riden [1958].
Is standard of care absolute?
No - important - person does not have to do everything possible to prevent harm.
Is the standard of care test objective or subjective?
Objective: however, despite this courts will look at specific circumstances and ask what reasonable man would have contemplated. (Glasgow Corporation v Muir [1943])
What is meant by ‘act, not the actor’? What’s the case?
Might not be clear what standard to apply. See Nettleship v Weston [1971]: learner driver required to meet standard of care for act she was carrying out (driving).
See also Phillips v William Whiteley [1938]: jeweller required to meet standard of jeweller not surgeon.
Wells v Cooper [1958]: ameteur carpenter standard (changing door handle)
Condon v Basi [1985]: professional v local footballer.
Key case re. professional standard?
Bolam v Friern Hospital Management Committee [1957]:
Facts: C requiring treatment for depression. Electro-convulsive therapy. Two thought lines re. use of relaxant drugs: if used, would have excluded risk of fractured pelvis which C suffered.
Two key elements to come out of Bolam?
- Standard of professional care: standard is based on what the reasonable professional in that field would have done.
- Test to determine a breach (re. professional standard) ‘man need not possess highest expert skill…’
Are professionals who claim to possess greater skill than normally possessed judged by ordinary standard or higher?
Ordinary: they may nevertheless be liable for breach of contract in certain situations if they fail to deliver the higher level of skill promised (Wimpey Construction UK Ltd v Poole [1984]
Examples of lower standard?
Children: (Mullin v Richards [1998], Orchard v Lee [2009]
Illness: (Roberts v Ramsbottom [1980], Mansfield v Weetabix Ltd [1998]) both driving; different outcomes.
Are lower standards applied to adults who are inexperienced?
No: see Wilsher v Essex AHA [1986] junior doctor case.
Factors relevant to a breach: 1 usual or common practice concept and case?
If D can show acted in accordance with practice usually followed.
However; Re Herald of Free Enterprise The Independent, 18 December (1987) - court can rule PRACTICE was negligent in general.
Less expertise/judgment/knowledge in area, less weight to ‘common practice’ over likelihood/magnitude of harm etc.
Factors relevant to a breach: 2 likelihood of harm concept and case?
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 cricket ball from pitch. Evidence showed unlikely (6 times 30 years 17ft fence).
Compare
Haley v London Electricity Board [1964]: blind C fell down hole in pavement dug by D. Risk to blind people not so small that it should be ignored. Act was negligent.
Factors relevant to a breach: 3 magnitude of harm concept and case?
Seriousness of injury - greater care needed.
Paris v Stepney Borough Council [1951]: C had one good eye, employers knew. No protective goggles provided - became blind. Greater care should have been taken.
And
Watson v British Boxing Boxing Board of Control Ltd [2001]: boxing regulation board breached care to boxer - magnitude of harm great (serious brain damage)
Factors relevant to a breach: 4 practicality of precautions concept and case?
How easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk.
Latimer v AEC Ltd [1953]: slippery factory floor, C slipped. D had taken precautions - only way to make safe would be to cease operations to employ many more to clean spills. NOT reasonable.
Factors relevant to a breach: 5 benefit of D’s conduct concept and case?
If the defendant has taken a risk with the aim of preserving or protecting life, limb or property.
Watt v Hertfordshire County Council [1954]: fireman injured in fire engine due to equipment not properly secured on way to help woman trapped under lorry.
- No breach by employer - risk small saving life justified risk.
- Where human life is at risk, D may be justified in taking abnormal risks - NOT blanket exclusion for liability though.
COMPENSATION ACT 2006 s 1
SOCIAL ACTION, RESPONSIBILITY AND HEROISM ACT 2015 - compensation culture?
Factors relevant to a breach: 6 sport concept and case?
When the defendant is participating in a sporting event, the demands of the game will be foremost in his mind and he is likely to take risks.
Wooldridge v Sumner [1963]: nothing short of reckless disregard for the claimant’s safety would constitute a breach.
Watson v Gray, The Times, 26 November 1998: held that there would be a breach of duty if the reasonable participant (of the defendant’s level) would have known that there was a significant risk re. injury.
Factors relevant to a breach: 7 ‘state of art’ defence concept and case?
NOT defence. Courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Unforeseeable risks can obviously not be anticipated and, therefore, failing to guard against them will not be regarded as negligence.
Roe v Minister Of Health [1954]: Cs injury was paralysis due to spinal anaesthetic. Cracks had formed in glass vile - unknown to anyone. Court rejected claim - at time of operation staff could not be expected to know dangers of storing this way. Test was responsible body would have known at the time of court hearing.
Factors relevant to a breach: 8 breach of errors of judgment concept and case?
Distinction to be made between an error of judgement and actual negligence. See Whitehouse v Jordan [1980].
General relevance of The Wagon Mound (No 2) re. breach?
Balancing exercise principle: likelihood of harm against magnitude of harm against practicality of precautions and benefit of D’s conduct.
Who does the burden fall on the prove the breach?
The claimant.
Heavy burden but may be assisted by Civil Evidence Act 1968 s11: If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results.
