Breach of duty

Question 1

General rule for breach of duty?

Answer 1

• Usual starting point is must behave as a reasonable person, not everything, just standard of a reasonable person.
• Objective test – a person free from over apprehension and from over-confidence.
• It’s based-on act not the actor – so Nettleship didn’t matter that it’s a learner driver.

Question 2

Exceptions to the general rule? For standard of care?

Answer 2

Professional standard
Bolam test – ordinary reasonable man exercising that special skill. HAVE TO SHOW PRACTICE THEYRE FOLLOWING IS LOGICAL.

Children – not adjusted to experience but based on reasonable child of defendants age carrying out the act
Illness and disability –
- In Roberts – he unknowingly suffered a stroke but he knew is consciousness had been impaired so he should have stopped driving.
- If unknowing then would not be liable.

Question 3

Factors establishing a breach of duty?

Answer 3

Likelihood of harm
- Bolton v Stone
- Ball had only gone over fence 6 times in 30 years, so chance was so light.
Magnitude of harm
- If any injury that may occur would be serious then greater care is need.
Practicability of precautions
- How easily risk could have been avoided and balance cost against severity of risk.
Benefit of defendant’s conduct
- If defendants had taken a risk with aim of preserving life, then this might be justified.
Common practice
- If defendant can show they have acted in accordance with normal practice they may escape liability. But if this itself is negligent will still be breach
State of the art
- Risk must be knowable or foreseeable
Sport
- Nothing short of recklessness would constitute a breach

Question 4

Who must prove breach?

Answer 4

rden is on claimant on balance of probabilities.
- S11 Civil evidence act – allows if any criminal prosecution is being brought, claimant can rely on any results of convictions.
- Res Ipsa loquitor – the facts speak for themselves. In which case defendant has to prove they were NOT negligent.

Question 5

For professionals breach of duty is to what standard?

Answer 5

In that particular area what’s reasonable.
May not be enough to show that their practice was common place – but also need to be reasonable or responsible.

Montgomery v Lancashire health board – under a duty to take reasonable care to ensure the patient is aware of any material risks of proposed treatment and what a reasonable person in patients’ position would attach.
1. Courts say Bolam test does not apply to failure to advise in relation to risks – wont defer to body of medical professionals, court will decide. MATERIAL RISK
2. Bolam test will effect second part = wont be negligent if their view is supported by medical practitioners.