Breach of duty Flashcards
How do you decide if there is a break of duty
Using the reasonable man concept
Outline the general concept of the reasonable man
To test if there is a breach of duty the question that should b put to the jury is ‘whether the defendant behaved as a reasonable and prudent person’
What did the case of Blythe establish
If the plaintiff falls below the standard of the reasonable man then they are in breach of their duty.
What is the standard of the reasonable man in the case of learners
There is no lowering of the bar, learners are put to the same standard as a reasonable experienced person doing the same action (nettelship v weston)
What is the standard of a professional?
The defendant does not need to be the top of their field but they must act to the same level of a reasonably experienced professional in their area of expertise (Bollom)
What is the standard for an amateur?
The same as a reasonably competent amateur this is seen in the case of Well v Cooper
What is the standard for a child?
It is the same as a reasonable child of the same sex and gender as the defendant Mullins and Richards.
What are the four factors that decide if a persona has acted reasonably?
- Probability of the harm
- Magnitude of risk
- Cost and practicality of taking precautions
- Possible benefits of the risk
What is the probability of harm
More care should be take when harm is more likely to happen.
How did the case of Bolton v Stone highlight the probability of harm principle
People were playing cricket and the ball has only clear the fence surrounding the pitch 6 times in 30 year and never hit anyone therefore the reasonable person would see the risk of harm is low
What is the magnitude of risk?
The is the seriousness of the harm that could potentially happen. You should take more care when the harm is greater
What did the case of Paris v Stepney highlight
Mr Paris was blind in one eye and therefore more case should have been given to him to avoid losing the other eye. He wasn’t given eye protection and was blinded by piece of molten metal.
Explain the cost and practicality of taking precautions
If the of taking precautions to eliminate the risk is too great then the defendant is not in breach of duty
What did the case of Latimer v AEC highlight
The cost and practicality of taking precautions. A factory floor became flooded and to prevent the risk of people slipping over, the only way to stop people slipping over would have been to shut the factory and this would not have been practical therefore he wasn’t in breach of his duty
Explain the possible benefits of the risk in a breach of duty
Some risks have benefits to society (social utility) For example in the case of Watt v HertfordshireCC an fireman was inured carrying equipment on a truck that wasn’t designed to carry the equipment en route to freeing a trapped person. It was held there was no breach of duty because the social utility of having that equipment to save a life outweighed the risk
What does the claimant prove the defendant did in terms of damage caused
The claimant must prove that the damage would not have been caused but for the defendants actions
What does the damage not being too remote mean
The damage must be reasonably foreseeable.
How does the case of the wagon mound highlight the remoteness of damage
It is reasonably foreseeable that spilt oil would cause pollution but it was not foreseeable that the split oil would set fire and cause damage to the opposite wharf and therefore the damage caused was too remote
Does it matter if the damage happens in an unforeseeable way?
No if the damage is foreseeable then it does not matter if the damage happens in a unforeseeable way. As seen in Hughes v Lord Advocate
Does the thin skull rule apply to damage, if so state the case
Yes it does the case that highlights this is Smith v Leech brain
