Breach of Duty 1- Standard of Care

Question 1

What is the general rule for breach of duty?

Answer 1

The task being performed will determine the standard of care imposed

Question 2

What case gives the classic description of the standard of care?

Answer 2

Blyth v Birmingham Waterworks 1856

Question 3

How is negligence defined by Alderson in Blyth?

Answer 3

“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”

Question 4

Who is the reasonable man?

Name the case?

Answer 4

“the man on the Clapham Omnibus”

LJ Greer - Hall Brookland Auto Racing

Question 5

What doe Lord Reid say about the reasonable man?

Answer 5

He doesn’t have to be a paragon of circumspection.

Question 6

Is the reasonable man test objective or subjective\?

Answer 6

Objective

Question 7

What case shows the standard of care is objective - even if the results do not always seem fair to the defendant?

Answer 7

Nettleship v Watson - a learner driver held to same standard as a normal driver

Question 8

Is the standard of care unreasonably high?

Answer 8

NO. A person does not have to do everything possible to prevent harm - only what a reasonable person would do.

Question 9

Name acase where the standard of care is not absolute?

Answer 9

Elthridge v East Sussex Council - teacher hit by basket ball and injured on the stairs. School not liable

Question 10

Is there a subjective element?

Who decides??

Name a Law Lord discussing it in a case?

Answer 10

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”

Question 11

Can the standard of care be an impersonal test?

Answer 11

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”

Question 12

Is the standard of care different when the defendant is a professional?

Answer 12

Yes. The Bolam standard demands that a solicitor should attain the standard of a reasonably competent solicitor etc

Question 13

What is the professional standard And what is the leading case?

Answer 13

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

Question 14

Can the standard for professionals be lowered on the basis of a lack of experience? Give case examples

Answer 14

No - Wilsher v Essex.

A junior doctor is held to the standard of a reasonably competent doctor.

(based on reasoning of Nettleship v Weston)

Question 15

Can there ever exist a lower standard than that of te reasonable man? To whom could suh a standard apply?

Answer 15

Children. The test will be that of a standard of care based on a reasonable child of that age.

Question 16

Will personal attributes of a child be taken into account?

Name a case?

Answer 16

No. McHale v Watson.

It doesn’t matter if the child is unusually “slow witted, wuick tempered, absent minded or inexperienced”

Question 17

What case developed the correct test?

Answer 17

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.

Question 18

How careless must a child be to be liable for negligence. Name a case

Answer 18

Very careless. Orchard v Lee. If they are not breaking any rules ( kd ollided with teacher) they wont be liable.

Question 19

Will the courts consider a def’s illness or disability in determining a standard of care?

Answer 19

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.

Question 20

What case can Mansfield v Weetabixbe compared to? What were the relecant facts in both cases

Answer 20

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

Question 21

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?

Answer 21

The Courts should use a test based - ON THE ACT AND NOT THE ACTOR - suggested in Wilsher vEssex

Question 22

Why did the Cof A suffest a test based on the act and not the avctor?

Answer 22

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.

Question 23

Give an example where the act defines the standard of care in

Answer 23

Phillips v Willam Whitely - a jeweller who underttok ear piercing was expected to have the skills of a reasonable jeweller - not a surgeon

Question 24

Give an example where the act defines the standard of care for landlords

Answer 24

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

Question 25

Name a hypnosis case where the Bolam test applied?

Answer 25

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

Question 26

What footballing case showed sportsmen held to the standard of care of a reasonably compentent footballer

Answer 26

Watson v Gray

Question 27

Is the higher one is in a field relevant to professional standards?

Answer 27

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

Question 28

Are professionals wo claim to possesss greater skill than those in their profession held to a higher standard?

Answer 28

No, butt they can be liable for breach of contract - ie Wimpey Construction v Poole