Breach of Duty

Question 1

Application of the Quadrant in Wagon Mound

Answer 1

• Probability of occurrence – very low
  
  • Cost of precautions – very costly
  • Likely gravity of injury – medium/high
  • Social cost – highly compromised
    BALANCING ALL THESE FACTORS, CRICKET CLUB NOT IN BREACH – THEY HAD LIVED UP TO THE STANDARD OF A REASONABLE CRICKET CLUB

Question 2

Qualification / Gloss to Bolam - Bolitho

Answer 2

EXPERT EVIDENCE, EVEN WHEN GIVEN BY A RESPONSIBLE AND RESPECTED EXPERT, CAN BE REJECTED IF THE EVIDENCE ITSELF IS NOT ‘RESPONSIBLE’, IN THE SENSE THAT IT DOES NOT WITHSTAND LOGICAL ANALYSIS

Question 3

What is the Role of Res Ipsa Loquitur?

Answer 3

• Meaning – the thing speaks for itself
  
  • The principle refers to circumstances from the establishment of which an inference of negligence can be drawn, so as to shift the evidential burden of proof to a [defendant].
    Very rare - exceptional cases

Question 4

What is the usefulness of the duty?

Answer 4

• In certain situations, the plaintiff’s burden of proving negligence on the part of a defendant doctor is difficult, if not impossible, because the plaintiff does not know how his injury or loss occurred and, consequently, cannot plead any act or omission amounting to negligence on the part of the doctor.• Only in situations where the exact cause of the accident is unknown can the maxim of res ipsa loquitur have any application. …

Res ipsa loquitur is a circumstantial rule of evidence based on the concept that, when an accident occurs under circumstances where it is so improbable that it could have happened without the negligence of the defendant, the mere happening of the accident gives rise to an inference that the defendant was negligent’:

Question 5

What are the requirements of Scott v London and St Katherine’s Dock

Answer 5

• The accident was of a kind that does not normally occur in the absence of a want of care;
  
  • The defendant had exclusive control over the thing which has caused his injury; and

The defendant has no plausible alternative (non-negligent) explanation of what caused the accident to occur.

Question 6

What is the rebuttal of Res Ipsa Loquitur?

Answer 6

Ratcliffe v Plymouth & Torbay Health Authority [1998]

Defendant has a plausible non-negligent explanation,
or
Defendant can prove the exercise of reasonable care

Note — evidential shift here – then goes back to claimant to prove negligence in the usual manner
Does not apply when there is factual evidence of negligence.