Breach of Duty Flashcards
What is the two-stage test for deciding the issue of breach?
The court first assesses how the defendant ought, in the circumstances, to have behaved, then the court decides whether the defendant’s conduct fell below the required standard.
What is the standard of care in negligence?
The defendant must meet the standard of ‘the reasonable man’.
Who is ‘the reasonable man’?
An average person, who is neither very intelligent nor very stupid; neither overly cautious nor unduly optimistic.
What is the standard of care for skilled defendants?
The skilled defendant must show a greater degree of skill and care than the reasonable person in the street.
They must meet the standard of a reasonable individual in their profession.
What is the principle established in Bolam?
As long as the skilled defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged to be negligent.
What is the principle established in Bolitho?
In some cases it cannot be demonstrated that the
body of opinion relied on by the defendant is reasonable or responsible. Thus, in a particular
case a claimant might be able to demonstrate that the professional opinion relied on by the defendant is not capable of withstanding logical analysis. In that situation, the court would be
able to find the defendant in breach of duty
What is the standard of care for the under-skilled defendant?
No allowance should be made and the defendant should be judged on the standard of the reasonable man.
If the defendant undertakes a task that requires a special skill that they do not possess, that in itself is likely to be negligent.
What is the standard of care for children?
A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age.
The younger a child is, the less likely the child is able to foresee harm to others.
What are the factors in determining whether a defendant has achieved the required standard of care?
The greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take.
The more serious the possible harm to the claimant, the more the defendant must take.
If the risk of injury could have been substantially reduced at a low cost to the defendant, the
defendant will have acted unreasonably if he fails to take the necessary precautions. If, on
the other hand, the defendant would incur great expense which would produce only a very
small reduction in risk, it will be reasonable for the defendant to do nothing.
The greater the risk of injury, the greater the steps the courts will expect defendants to take in
reducing or eliminating the risk.
If the defendant’s behaviour, is in the public interest, the defendant is less likely to be held liable in negligence.
If the defendant’s activity has no social utility or is unlawful, the defendant will be required to
exercise a very high degree of care to justify even a small risk of harm to others.
It is comparatively rare for courts to condemn a commonly accepted practice as negligence.
The defendant’s activities are judged by the standard of current knowledge.
Is impecuniosity a defence to a breach of duty?
No
What is the burden of proof for proving a breach of duty?
The claimant must establish that it was more likely than not that the defendant was in breach of the duty of care (balance of probabilities).
What is the maxim of res ipsa loquitor?
In a very small number of cases, the circumstances in which the damage occurred
will be such that a court may be prepared to draw an inference of negligence against the
defendant without hearing detailed evidence of what the defendant did or did not do.
What are the three conditions for the application of the maxim res ipsa loquitor?
The thing causing the damage must be under the control of the defendant or someone for
whom the defendant is responsible.
The accident must be such as would not normally happen without negligence.
The cause of the accident is unknown to the claimant – so that the claimant has no direct
evidence of any failure by the defendant to exercise reasonable care.
How can a defendant provide a defence against res ipsa loquitor?
They need to produce evidence to show:
How the accident actually happened and that this was not due to negligence on their
part; or
If they cannot show how the accident actually happened, that they had at all times used
all reasonable care.
What is the affect of s.11 Civil Evidence Act 1968?
A defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence.
It can help a claimant to prove that a defendant has fallen below a reasonable standard of care where the offence of which the defendant has been convicted
involved careless conduct. The claimant can rely upon the conviction as evidence that this
careless conduct did take place.
