breach of duty Flashcards
Who has the onus of proving that a breach has taken place?
The claimant
What is the concept of a standard of care?
A court can only conclude that a defendant breached the duty owed to the claimant if there is sufficient evidence to support a conclusion that the defendant fell short of the standard of care expected of them in the circumstances.
Any court called upon to deal with the breach element of a claim based in the tort of negligence must consider two issues, namely:
- What standard of care was the defendant required to reach in the circumstances; and
- Whether the defendant reached the standard of care expected of them in the circumstances or not.
is the test objective or subjective?
objective
Are there any criteria that help to assess if a breach has taken place?
Are there any relevant cases?
A. The likelihood of an accident happening (Bolton v Stone)
B. The extent of the potential harm (Paris v Stepney)
C. The practicability of taking precautions: risk-benefit analysis (Latimer v AEC)
D. Skilful claimants (Roles v Nathan)
E. The qualifications claimed by the defendants (Bolam v Friern Hospital)
F. Good Practice (Thompson v Smiths Ship Repairers)
If a claimant has suffered harm, does it always mean that the defendant is liable?
No. Even though all reasonable care has been taken, the claimant may still suffer damage. Proof of damage to the claimant does not necessarily prove the defendant failed to take reasonable care.
Luxmoore May v Messenger May Bakers – the defendants were auctioneers who failed to correctly value two paintings owned by the claimant. As a result, the claimant lost money when they were sold. It was held the claimants had failed to prove that the defendants had acted without reasonable care i.e. a competent valuer could have made the same mistake.
How does res ipsa loquitur fit in?
Shifts the burden of proof.
Negligence is inferred from the facts.
The following conditions must be present for the rule to apply.
(a) the defendant must have exclusive control over the things that caused the damage.
(b) the cause of the accident must be such as would not normally happen without negligence
(c) the cause of the accident must be unknown
What does the claimant have to prove under the breach of duty criteria?
a. That the defendant actually foresaw all the damage caused by his act or omission
b. That the defendant actually foresaw that his act or omission would cause some damage (but not necessarily the full extent of the damage which occurred)
c. That a reasonable person in the defendant’s position would have foreseen all the damage caused by his act or omission
d.That a reasonable person in the defendant’s position would have foreseen that his act or omission would cause some damage (but not necessarily the full extent of the damage which occurred)
d.That a reasonable person in the defendant’s position would have foreseen that his act or omission would cause some damage (but not necessarily the full extent of the damage which occurred)
Emily had just passed her driving test when she negligently knocks over a cyclist. What standard of care will Emily be judged by?
a. The standard of a newly qualified driver, Emily’s lack of experience will be taken into account.
b. Emily will be judged using a subjective test.
c. The standard of a competent driver, Emily’s lack of experience will not be taken into account.
d. It will depend on the seriousness of the harm caused to the cyclist.
c. The standard of a competent driver, Emily’s lack of experience will not be taken into account.
Which case sets out the test for the standard of care to be applied to doctors and other professionals?
a. Djemal v Bexley Health Authority
b. Bolam v Friern Hospital Management Committee
c. Luxmoore May v Messenger May Bakers
d. Donoghue v Stevenson
b. Bolam v Friern Hospital Management Committee
Which of these is an accurate explanation of the objective test for a standard of care in negligence?
a. Did the defendant believe that they were taking reasonable care?
b. Did the defendant intend to take reasonable care?
c. Did the defendant take such care as could be expected from a reasonable person?
d. Did the defendant take such care as to eliminate known risks?
c. Did the defendant take such care as could be expected from a reasonable person?
In Bolton v Stone, why did the claimant fail to win her case?
a. The cricket club did not have a duty of care.
b. Her injury was not foreseeable.
c. There was nothing the cricket club could have done to prevent the accident.
d. The risk of the type of accident that occurred was so small that it was reasonable not to take steps to prevent it.
d. The risk of the type of accident that occurred was so small that it was reasonable not to take steps to prevent it.
