Breach of Duty 1- Standard of Care Flashcards
Overview
What is the general rule for breach of duty?
The task being performed will determine the standard of care imposed
What case gives the classic description of the standard of care?
Blyth v Birmingham Waterworks 1856
How is negligence defined by Alderson in Blyth?
“Negligence is the omission to do something which a reasonable man … would do, or doing something which a prudent and reasonable man would not do”
Who is the reasonable man?
Name the case?
“the man on the Clapham Omnibus”
LJ Greer - Hall Brookland Auto Racing
What doe Lord Reid say about the reasonable man?
He doesn’t have to be a paragon of circumspection.
Is the reasonable man test objective or subjective\?
Objective
What case shows the standard of care is objective - even if the results do not always seem fair to the defendant?
Nettleship v Watson - a learner driver held to same standard as a normal driver
Is the standard of care unreasonably high?
NO. A person does not have to do everything possible to prevent harm - only what a reasonable person would do.
Name acase where the standard of care is not absolute?
Elthridge v East Sussex Council - teacher hit by basket ball and injured on the stairs. School not liable
Is there a subjective element?
Who decides??
Name a Law Lord discussing it in a case?
Lord Macmillan - Glasgo v Muir said “it is still left to the judge to decide …what the party sough to be made liable would have forseen”
Can the standard of care be an impersonal test?
By the precedent of Glasgow v Muir , yes. Lord macmillan states that it “eliminates the personal equation” and is independent of the idiosyncracies of the particular person whose conduct is in question”
Is the standard of care different when the defendant is a professional?
Yes. The Bolam standard demands that a solicitor should attain the standard of a reasonably competent solicitor etc
What is the professional standard And what is the leading case?
What would a reasonable professional have done in that field. The benchmark is higher than the “man on the Clapham omnibus”
Bolam v Friem Hosppital Management Committee
Can the standard for professionals be lowered on the basis of a lack of experience? Give case examples
No - Wilsher v Essex.
A junior doctor is held to the standard of a reasonably competent doctor.
(based on reasoning of Nettleship v Weston)
Can there ever exist a lower standard than that of te reasonable man? To whom could suh a standard apply?
Children. The test will be that of a standard of care based on a reasonable child of that age.
Will personal attributes of a child be taken into account?
Name a case?
No. McHale v Watson.
It doesn’t matter if the child is unusually “slow witted, wuick tempered, absent minded or inexperienced”
What case developed the correct test?
Mullin v Richards (2 fifteen tear old girls were playing with a plstic ruler. One was hit in the eye).
There was found not to be a foreseeable risk of injury.
How careless must a child be to be liable for negligence. Name a case
Very careless. Orchard v Lee. If they are not breaking any rules ( kd ollided with teacher) they wont be liable.
Will the courts consider a def’s illness or disability in determining a standard of care?
Yes, IN SPECIAL CIRCUMSTANCES if he is unaware of the illness or disability affecting him.
Mansfield v Weetabix - lorry driver suffered hypoglacemicattack. the crash and attack happened at same time - no knowledge of impairment so no time to take evasive action.
What case can Mansfield v Weetabixbe compared to? What were the relecant facts in both cases
Robets v Ramsbottom.
In Robers v Ramsbottom an elderly man suffered a stroke. He was unaware of the stroke but was aware driving was impaired. He collided with a stationary van before hitting and injuring claimant who emereged from stationary vehicle.
Mansfield v Weetabix - lorry driver suffered hypoglacemicattack. the crash and attack happened at same time - no knowledge of impairment so no time to take evasive action.
Held: LIABLE
What should the courts do in cases here it is not clear which standard should apply ? ie professional Bolam or man on the Clapham omnibus?
The Courts should use a test based - ON THE ACT AND NOT THE ACTOR - suggested in Wilsher vEssex
Why did the Cof A suffest a test based on the act and not the avctor?
Courts can look to the task undertaken and attach a standard to that task. if it is an ordinary task requiring no special skill the test will be that of an ordinary man. If it is only ever undertaken by a professional, the Bolam test will apply.
Give an example where the act defines the standard of care in
Phillips v Willam Whitely - a jeweller who underttok ear piercing was expected to have the skills of a reasonable jeweller - not a surgeon
Give an example where the act defines the standard of care for landlords
Wells v Cooper.
The Landlord fitted a handle that came off, damaging the claimant. As the task undertaken was one that didn’t require special skill he ws held to the standard of a reasonable amateur and not a reasonable professional capenter
Name a hypnosis case where the Bolam test applied?
Gates v Mkenna - Mkenna shouls have reached the standard of care of a careful exponent of stage hypnotism to prevent risk of injury to audience
What footballing case showed sportsmen held to the standard of care of a reasonably compentent footballer
Watson v Gray
Is the higher one is in a field relevant to professional standards?
Yes. Condon v Basi - it was sufggested a higher standard of carewould be required of a first division footballer than a local league player - SUGGESTION
Are professionals wo claim to possesss greater skill than those in their profession held to a higher standard?
No, butt they can be liable for breach of contract - ie Wimpey Construction v Poole
