Breach Of Duty

Question 1

What is the standard of care?

Answer 1

This comes from the reasonable man test. This is where the courts ask what would the reasonable man do?

Question 2

What is the reasonable man test? Where did it come from?

Answer 2

It came from the case of Blyth v Birmingham Waterworks Company 1865.
There are three types of the reasonable man;
-Professionals
-Children
-Learners

Question 3

Professionals;

Answer 3

When professional are concerned, the courts will expect the defendant to show a degree of competence usually expected of the typical skilled member of that profession.

Question 4

Where did the test for professional come from? What is the test?

Answer 4

Bolam v Friern Hospital Management Committee 1957;

1. Does Ds conduct fall below the standard?
2. Would someone within the same profession support Ds conduct

Question 5

Children;

Answer 5

For children the standard is that of the reasonable person of Ds age.
Mullins V Richards 1998

Question 6

Learners;

Answer 6

These are held to the same standard of the fully competent, more experienced person.
Case; Nettleship v Weston 1971

Question 7

What is the degree of probability that there will be harm/ risk

Answer 7

If the risk of damage is small, the D will not be in breach. Care must also be taken into respect of a risk where it is reasonably foreseeable that harm or injury might occur.
Case; Bolton v Stone 1951

Question 8

What is meant by the magnitude of likely harm/special characteristics of C

Answer 8

In this test the courts consider not only the risk of harm, but also how serious the injury could foreseeable be.
Case; Paris v Stepney Borough Council 1951

Question 9

What is meant by the cost and practicality of preventing risk/ appropriate precautions

Answer 9

The courts are looking at whether D could have taken precautions against the risk. If the cost of taking such precautions to eliminate the risk is disproportionate to the extent of the risk itself, D will not be held liable.
Case; Latimer v AEC 1953

Question 10

What is meant public Benefits/ emergencies

Answer 10

If there is an emergency, then risks can be taken and a lower standard of care expected. (This is consistent with Fair, just + reasonable)
Case; Day v High Performance Sports 2003

Question 11

What is unknown risks

Answer 11

If there is an unknown risk, then there will be no breach.

Case; Roe v Minister of Health 1954.