Breach of Duty 2 - Establishig a breach of duty Flashcards
What point do the courts consider in establishing a breach of duty?
- Was the act or failure to act, usual or common practice- particularly in professional negligence
- Was it reasonably foresee that the claimant woyld suffer damages - was there a likelihood of harm
- Was the claimant at greater risk than others - and in need of special consideration (Seriousness of injury magnitude of harm); therefore meaning a higher standard of care should be expected of the defendant
- Could the risk have ben practically avoided? Or did the def take reasonable precautions tp prevent damage or loss
- Was the def undertaking, or trying to undertake a socially desirable activity - ie helping someone/ preventing damage to person and p
- Can the def satisfy the bolam Test if they act in the same way as is common practice in the field?
Name a professional neglifgence casethat proves or disproves yourtheory
Yes. Maynard v West Midlands -acted in accordance with common practice of a reasonable body of doctors
How cN THe adage of taking into account the act and not the actor apply. Name a case
Re Herald of Free Enterprise - common practice of sailing a Ro-Ro ferry with the doors open held to be illogical and therefore negligent
- Should the likelihood of harm be taken into account?
yes - but what is considered “likely” is not always discernable
Name a case where the likelihood of harm effected liability in a cricket game
Bolton v Stone - def hit by cricket ball. Only happened 6 times in 30 years. Held - cricket ground not liable. Reasonable man would not have guarded against such a risk
How can Bolton v Stone be ompared to pearson v Lightning
Bolton v Stone - def hit by cricket ball. Only happened 6 times in 30 years. Held - cricket ground not liable. Reasonable man would not have guarded against such a risk
Pearson v Lightning - golfers took a difficualt shot. Hit the tree and injured the claimant.
Held - foreseeable if the difficult shot went wrong it could damage the claimant
What if a lind man fall in a hole when a sign has been put up?
Haley v London Electricity Board
blind claimant fell in a hole dug in the pavement. Def liable as causing injury to blind people was not so small it should be ignored
- If the Claimant is at greater risk, will the coutys imposea higher standard of care - and be more willing to find a breach?
Yes. If the def is aware that the claimant is at greater risk than others.
Name 3 cases where the Claimant is at greater risk, will the coutys imposea higher standard of care - and be more willing to find a breach?
Paris v Stepney Borough Council (One eyed man not given protective goggles when working with metal)
Watson v British Boxing board of Control - no resuscitation equipment adequately manned. Watson left with brain damae from eubank
Yachuk v oliver blais - sold petrol to a 9 year old
- Will the Courts take into account the practicality of the def taking precautions? Name a case that proves this?
yes. Courts balance the cost and practacility of precautions against the severity of the risk
Latimer v AEC LTD - def laid down 3 tonnes of sawdust in a factory after flood. Held: he acted reasonably on balance to the very small risk to the defendant
Will the Courts hold a defendant liable if theyemploy a 3 rd party who don’t have insurance?
50/50. Bottomley cv Todmoron Cricket club - def was burnt in a firework display held by 3rd party contractor. Club was still liable
Compare Vottomley v Tomdoron v Payling and Naylor
50/50. Bottomley cv Todmoron Cricket club - def was burnt in a firework display held by 3rd party independent contractor. Club was still liable
Payling and Naylor - claimant injured after being ejected from a nightclub. claimantalleged Naylor (nightclub) had failed to ensure security firm had public liability cover. Held - Not liable
Factors overlap
Bottomley - employed independent contractor - reasonable they should have made provisions against liability. Payling - hired a firm . probably assumed they had insurance
- if the def was acting to perform a socially desirable activity there might not be liability if the claimant is damaged.
Is this true?
Using case law, can this idea be applied to rescue and emergency services?
If def is acting to protect life and limb, there might not be liability.
In Watt v Hertefordshire County Council - a fireman on the way to emergency was injured by unsecured firefighting equipment
Held : Firefighrer employer not liable as where human life is at stake, def may be justified in taking abnormal risks
Contast Watts v Herefordshire County Council and Ward v London City Council
In Watt v Hertefordshire County Council - a fireman on the way to emergency was injured by unsecured firefighting equipment
Held : Firefighrer employer not liable as where human life is at stake
Ward v London City Council - fire engine jumped atraffic light and hit the claimant.
Held - ris was too high to be run and therefore council ws liable
