breach of duty Flashcards
how is breach determined
reasonable man test
what is the facts to go with the reasonable man test
blyth v birmingham waterworks– d installing fire hydrants along street, coldest temp, water froze over and expanded causing fireplug pushed out, caused water damage in c property
what is the reasonable man test
objective test
measure of degree of care reasonable man would have exercised in the same situation
expected to have ordinary levels of skill and knowledge
special characteristics not taken into account
what are the special circumstances to be considered
learners- learners held to same standard of qualified drivers- nettleship v weston- weston learning to drive using husbands car, nettleship teaching her, weston lost control mounted kerb and crashed into lamp post, nettleships knee injured
professionals- professionals held to same standard as other professionals in the same field, bolam principle- bolam v friern hospital management committee- c agreed undergo electroconvulsive therapy for mental illness, treatment suffered severe fractures, doctor not regarded as being negligent if followed practice accepted by responsible body of medical opinion,
children- children held to same standard as other children the same age, mullin v richards- two 15yo girls play fighting with plastic rulers, one rulers broke and one girls blinded in one eye by fragment of plastic, other girl not negligent
what are the four risk factors
degree of risk
potential seriousness of the harm
cost and practicality
social utility
what is the degree of risk
reasonable man would take extra care if there was a high risk of harm or damage occuring from his actions
bolton v stone- c injured standing on road when cricket ball struck over d ground, ball been hit out grand 6 times 30 years and no one hurt, cricket ground erected fence around site, d not negligent, reasonable person would have been justified in disregarding the risk as it was so low
the higher the risk the more care expected
what is potential seriousness of harm
if potential harm is serious individuals and organisation exercise considerable care avoid liability for accidents as reasonable man would take extra care if death or serious injury was possible
paris v stepney- c blind in one eye, employed as mechanic, company didnt supply goggles, metal flew into c good eye, became completely blind, d liable
greater the risk to c greater precautions than normal had to be taken by d as that is what the reasonable man would do
what is cost and practicality
if cost of taking precuations eliminate risk disproportionate to extent of risk d will not be held liable as reasonable man would not pay excessive amounts or do something impractical to elimiate small risk
latimer v aec- factory flooded, used sawdust to reduce effects, some areas slippery, employee injured and fell, not breach, only way avoid risk shut factory, out of proportion to level of risk
cost and practicality must not be disproportionate to risk
what is social utility
if society benefit from taking risk the reasonable man would do it
watt v hertfordshire cc- incident woman trapped under vehicle, fire service sent lorry, piece equipment slipped and injured c (fireman)
if risk taken to save lives of many others then unlikely that the defendant would have breached their duty
evaluation of reasonable man test
+ ensures all defendants treated equally compared to same standard
+ gives clear idea of standard expected
+ high standards beneficial to society
+ ensures anyone injured by learner able to claim compensation
+ necessary to proctect society as whole
- unfair for learners who cant reach standard of qualified person
- being held to impossible standard
