Breach of Duty Flashcards
When seeking to establish a claim in negligence, you must first establish…..
The kind of loss or damage sustained.
That DoC is owed by the defendant in relation to that loss.
Two stages in determining whether there has been a breach of duty
1) Standard of care to be expected must be established
2) Facts to establish that the defendant has fallen below the standard - breached the duty
Standard of care questions
- How careful does a defendant need to be?
- Do we expect the same from different sets of people
Standard of care: The general rule
Defendant must behave as a reasonable person would in all circumstances.
See definition in Blyth v Birmingham Waterworks 1856
Blyth v Birmingham Waterworks 1856
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily relate to the conduct of human affairs, would do…
Or doing something which a prudent and reasonable man would not do.
Reasonable person an objective test
- Look at the facts and circumstances
- What would a reasonable person assume
= impersonal test
Act, not the actor
The test for setting the stdard of care
Nettleship v Weston 1971
A learner driver was judged by the standard of the ordinarily competent driver.
No allowance was made for her lack of experience.
The act (driving) set the standard; it was not adjusted to the actor (a learner driver)
Wisher v Essex AHA 1986
- Junior doctor placed a catheter into a vein rather than an artery leading to an excess of oxygen in the young patient, and it was argued, subsequent blindness.
- Lower standard of care did not apply to those training within medicine profession.
- Did argue that wouldnt have been breach if sought advice from a more senior/experienced colleague
Condon v Basi 1985
Higher degree of care would be required for a first division footballer than a local league player.
Standard of care in competitive sports is objective in differing sets of circumstances.
The professional standard
A different standard is expected of professionals and can be seen as an example of the “act, not actor” principle.
The standard is based on what the reasonable professional in that field would have done, rather than what the reasonable person would have done
Bolan v Friern Hospital Management Committee 1957
FACTS
- Claimant was treated for depression
- Two bodies of competent medical opinion as to the procedure to be used in electro convulsive therapy (relaxant drugs or not)
- No drugs were used, claimant suffered a fractured pelvis.
- was admitted that a relaxant would have excluded the risk of fracture
Bolan v Friern Hospital Management Committee 1957
HELD
A man need not possess the highest expert skill
Established law that is sufficient if he exercises the ordinary skill of an ordinary competent man
Professional negligence
Not a separate tort but a particular area of ordinary common law negligence
Children
Standard required will be that of the reasonable child of the defendant’s age carrying out that act
See Mullin v Richards 1998
Mullin v Richards 1998
- 15 year old schoolgirls
- Injured eye from ruler during a play fight
- CoA held whether a reasonable and careful 15 year old would have forseen the risk of injury
- Held that the schoolgirls could not have forseen - common and not prohibited practice.
Illness and disability
Courts modify the standard to take into account certain characteristics of defendants.
* eg where the defendant is suffering from an illnes that he was reasonably unaware of
Eg Roberts v Ramsbottom vs Mansfield v Weetabix Ltd
Roberts v Ramsbottom 1980 - FACTS
Defendant unknowingly suffered a stroke before driving into town.
Was aware that his consciousness had been impaired.
Collided with a stationary van before hitting and injuring claimant
Roberts v Ramsbottom 1980 - HELD
Defendant was negligent
Judged against the standard of a reasonable competent driver
Defendant could only escape liability if the incapability amounted to a total loss of consciousness or control
Mansfield v Weetabix Ltd 1998 - FACTS
Lorry driver crashed his vehicle into claimants shop after suffering hypoglycaemic attack.
No evidence to suggest that the driver knew his ability to drive was impaired
Mansfield v Weetabix Ltd 1998 - HELD
Standard of care was adjusted
Judged against the standard of a reasonably competent driver who was unaware that he is suffering a condition that impairs his ability to drive
Not liable
General rule
Defendant must behave as a reasonable person would in all circumstances.
Objective standard
The standard is set by…
The standard is set by the act, not the actor
When act is carried out by a professional…
The standard is based on what the reasonable professional in that field would have done
Establishing breach of duty
- Establish standard of care
- Establish if duty is breached
Establishing breach of duty is a question of …
- Fact and degree
- Consider all of the particular circumstances of the case
Factors relevant to breach
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefit of defendant’s conduct
- Common practice
- “State-of-the-art” defence
- Sport
Factors relevant to breach: Likelihood of harm
The more likely someone is to get injured, the more likely it is that there will be a breach.
eg Bolton v Stone 1951; Haley v London Electricity Board 1964
Bolton v Stone 1951
Injured by a cricket ball, hit out of the ground.
Happened 6 times in the previous 30 years, 7ft fence around it.
Risk was so slight that there was no breach
The reasonable person would not have guarded against such a small risk.
Haley v London Electricity Board 1964
- Blind claimant fell down a hole in the pavement dig by the defendant
- Precautions not taken to precautions
- Risk of causing injury to blind people was not so small that it should be ignored
