breach of duty Flashcards
what is a breach of care?
A breach occurs when defendants fall below the particular standard of care required
Blyth – ‘ the omission to do something which a reasonable man would do, or doing something the reasonable man would not do’.
What is the standard of care required?
The defendant needs to behave ‘reasonably’ – but not perfectly - What would the reasonable person have done in those circumstances?
what standard are learners judged against + case?
- qualified drivers
- Nettleship case - a duty of care was owed as road user owes duty of care to other road users
held: Learners are judged at the standard of the competent, qualified and more experienced driver
how are professionals – with a special skill or competence judged + case?
- they are to be judged against a reasonable person of the same skill set
- Bolam Professionals are judged by the standard of the profession as a whole. claimant was not told of the risk of broken bones and suffered broken pelvis.
what case altered Bolam and how professionals are judged?
Montgomery - Held: doctors are required to tell you of the risks if it’s harmful to your health – even if there is a body of medical opinion who agree with not telling the patient
how are children judged + case?
- Mullin case -15 year old girl was judged to the standard of a 15year old girl – not a reasonable adult
- ‘ a reasonable person of the defendant’s age at the time of the accident’
what are the RISK FACTORS the court has to consider when looking at breach of DoC?
they have to set the standard of care required by the defendant
There are 5 risk factors the courts can consider
1. Has the claimant any special characteristics that need to be taken into account?
2. What is the size of the risk?
3. Have all appropriate precautions been taken? The cost and practicality of preventing risk?
4. Were the risks known about at the time of the incident?
5. Is there a public benefit to taking the risk?
what is risk factor 1 + case?
- Has the claimant any special characteristics that need to be taken into account?
- Paris case - claimant blind in one eye and given work with small risk of injury to the eyes. He was not given any protective goggles. his good eye was damaged and he became totally blind.
what is risk factor 2 + case?
- What is the size of the risk?
- a cricket ball hit a lady passer-by but evidence was that there was a 17-foot-high fence around the ground + cricket balls had only been hit out of the ground six times in the 30 years
what is risk factor 3 + case?
- Have all appropriate precautions been taken? The cost and practicality of preventing risk
- Latimer case: factory became flooded, sawdust was spread over the floor of the most-used areas to minimise the risk of slipping but one worker slipped and was injured.
what is risk factor 4 + case?
- Were the risks known about at the time of the incident?
- Roe case: At the time, it was not known that invisible cracks could occur in the glass of the tubes which caused the anaesthetic to become contaminated by the cleaning solution, the claimant was paralysed
what is risk factor 5 + case?
- Is there a public benefit to taking the risk?
- Watt case: The claimant was injured when the jack slipped and fell on him on the way to the accident, to release a woman trapped underneath a lorry.
