Breach of a duty of care Flashcards
Basic test?
Blyth - Reasonable man criteria
This is an objective standard, considering what is ought to be done, not what is normally done.
Skill of the reasonable person?
Nettleship v Weston: Learner driver must drive in as good a manner as a driver of skill and experience.
May seem unfair but impossible to tailor duty to each person depending on their level of skill - also learners are insured.
Lowering/changing objective reasonable standard 1: Age
Mullin v Richards:
Teenagers playfighting with rules, ruler shattered causing injury.
Court had to consider what the reasonable person (a child at that age) would have foreseen. No suggestion on facts that this was reasonably foreseeable.
Orchard v Lee
Boys playing tag, one ran into teacher.
Asked what a 13 year old child at that age would have foreseen - hence not reasonably foreseeable.
Exceptions/changing the standard 2: Disability: Mansfield v Weetabix
Standard of care reduced to account for condition - must show level of care which is to be expected of a reasonably competent driver unaware that he is suffering from a condition that impairs his ability to drive.
He did not know of his condition but only had near-misses in the past.
Exceptions/changing the standard 2: Disability: Dunnage v Randall
Schizophreniac pours petrol on himself, nephew struggled to prevent him igniting it, gets injured in process.
Is it objective or subjective standard?
Held here that objective standard to be applied for those suffering from mental illnesses, for the protection of innocent victims.
Relevant factors to assessing breach - Timing
Roe v Minister of Health - C paralysed after op where they were administered anaesthetic in spine. Anaesthetic contaminated due to invisible, undetectable cracks in the ampoule.
It was not yet known that this was a danger, and so it was not negligent for him to not know it at the time.
‘Must not look at the 1947 accident with 1954 spectacles’
Exceptions/changing the standard 3: Skills
Philips v Whitely: Jewellers not held to same standard as doctors/surgeons in cleaning for ear piercings/other cosmetic surgeries.
On facts, he had sanitised tools and used flames - this was sufficient and it hadn’t been proven the infection came from him.
Factors relevant to making the assessment of breach 2: Utility of conduct (statutes)
Compensation Act 2006 s1 and Social Action, Responsibility and Heroism Act 2015 deal with this
CA - Court should consider whether finding a breach might prevent desirable activities
SARH - States that court must have regard to whether the alleged negligence or breach occurred when the person was acting for the benefit of society or any of its members, had a responsible approach towards safety or interests of others, and whether the person was acting heroically
Factor in making the assessment of breach 2: Utility of conduct (cases)
Royal Opera House - Viola player in orchestra suffered hearing damage. ROH had breached their statutory obligations, and failed to take necessary steps to reduce exposure.
Compensation Act did not affect liability, since more could have been done to reduce noise, so there didn’t need to be interference with socially desirable activity.
Ashton v Liverpool:
YMCA provided shelter for vulnerable adults, claimant disabled, had substance abuse issues and a criminal record.
She got a room designed for disabled users with low windows and restrictors on windows.
She got high/drunk and hung from the window.
Held the centre had not taken appropriate steps to mitigate foreseeable risk and obvious danger. Additional restrictors would have been low-cost, so imposing a breach of duty wouldn’t curtail/impede with the YMCA’s socially desirable actions.
Factors relevant 3: Probability of harm: Bolton v Stone
Cricket ball from nearby pitch flew out and hit lady, even though there was a large fence.
Balls had gotten over fence before but this was rare, so strike hitting claimant was very rare. Held CC not in breach as likelihood of harm was very low, and erecting a fence any higher would just be impractical.
CC also provided a useful social service to the community.
If risk wasn’t so small, there may be liability since a reasonable man should not disregard any risk unless it is extremely small, but here it was.
Factors relevant 3: Probability of harm: Wagon Mound No 2
Furnace oil leaked from ship, drifted under a wharf, coating the water and got ignited by welders - ships destroyed
Found by trial judge that the officers of Overseas Tankship knew that the oil could ignite but this was rare and happened only in exceptional circumstances.
Held that a reasonable person in the position of the ship’s engineers would have known of the risk of fire, and since the gravity of potential damage was so great there was no excuse for allowing the oil to discharge, even if the probability was low. A reasonable person would only neglect such a risk of great magnitude with a reason, eg if it were cost prohibitive.
Factors affecting assessment of breach 4: Gravity of harm
Paris v Stepney - Man blind in one eye, gets injured at work in the other eye.
Duty owed is to the particular employee, not to a hypothetical ‘reasonable’ employee.
Since he had sight in one eye, strong potential for great harm, so reasonable person would take greater steps to protect him.
Factors affecting assessment of breach 5: Cost of precautions
Latimer - Factory flooded, floor slippery.
Defendants mopped up, put out warning signs and placed sawdust on floor.
Complainant fell and barrel crushed his ankle.
Held that the defendants had taken all reasonable precautions, he only had to take steps that a reasonable person would.
Not fair to ask him to shut down entire factory - heavy cost.
Factors affecting assessment of breach 6: Sporting/Games Context
Woolridge: Participant in horse-racing not liable for injuries caused to spectators who enter the arena willingly, unless they act with deliberate or reckless disregard for spectator’s safety.
Blake v Galloway: Kids throwing bark at each other, hit one kid’s eye. Court held that participation in the game meant implied consent to being struck. Victims of such incidents not able to recover unless they can show recklessness or a high degree of carelessness, or that the harm was deliberate.
Czernuszka v King:
Rugby player ‘goes for’ opposing player.
Claimant spinal injury, paralysed. Opponent did not tackle her but essentially attacked her - sport is not exempt from negligence where the player falls below appropriate standard of care - liability found
Bolam + Bolitho
Bolam test for medical professionals: not guilty if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art
Bolitho: Held that, if the professional opinion not capable of withstanding logical analysis, judge may hold that the opinion is not reasonable or responsible.
Cavanagh v Ulster Weaving Co Ltd
Evidence that employers’ systems align with trade practices alone is not sufficient to disprove negligence.
Employer is bound to take reasonable care for the safety of his employees
Montgomery
Risk of shoulder dystocia not disclosed, baby born with difficulties which would have been avoided with a Caesarean.
Consent must be obtained before treatment.
Doctors under a duty to disclose material risks of treatment, and reasonable alternative treatments.
Test for materiality - whether a reasonable person in patient’s position would likely attach significance to the risk, or whether the doctor knew or reasonably should have known that this particular patient would.
McCulloch
Heart issues, NSAIDs not discussed. If they had been discussed, he might have taken them and been saved.
The test for ‘reasonable alternative treatments’ is Bolam. So a doctor can exercise own judgement on disclosing reasonable alternatives provided he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
Baker v Quantum
Noise levels arguably beyond reasonable in factory, hearing loss.
However, factory owners followed codes of practice and regulations.
Generally this will exonerate from liability unless the trade practices were bad or the employer had greater knowledge.
However, it is just one factor to consider in whether the employer acted reasonably - other steps include gravity of risk, proportionality of taking steps etc.
The matter speaks for itself - Res Ipsa Loquitur
George v Eagle Air Services - The crashing of an aircraft necessarily means negligence has occurred, burden of proof shifts to defendant to prove that they weren’t negligent.
Aircraft do not usually crash, and certainly should not. If they do, it is not unreasonable to put the burden on the owner to produce an explanation.
