Breach of Duty

Question 1

Blyth v Birmingham Waterworks

Answer 1

“Negligence is the omission to do something which a reasonable man… would do, or doing something which a prudent and reasonable man would not do”

Question 2

What things to consider when working out the standard of care?

Answer 2

1) Characteristics D and Reasonable person shares
2) evaluate different factors
3) special, professional skill/expertise

Question 3

Nettleship v Weston

Answer 3

D’s actual characteristics are NOT attributed to reasonable person
- STRICT OBJECTIVE TEST

(here, learner driver)

Question 4

Barnett v Chelsea & Kensington Hospital

Answer 4

(arsenic poisoning bad doctor who was ill)

• STRICT OBJECTIVE TEST (cannot consider that doctor was ill)

Question 5

Mullin v Richards

Answer 5

AGE can be attributed to “reasonable person”

NB. they were VERY specific saying “15-year-old”

Question 6

Mansfield v Weetabix

Answer 6

DISABILITY can be attributed to “reasonable person”

• if he doesn’t know he suffered (if he did, it wouldn’t be reasonable to drive without medication)
• and because it was a gradual condition so its fine he didn’t realise

Question 7

Roe v Minister of Health

Answer 7

TIMING - factors reasonable people take into account

• cannot consider with benefit of hindsight
• glass containers, no one knew

Question 8

Maga v Trustees of Birmingham Archdiocese Roman Catholic Church

Answer 8

must apply historic standards of 1974 not 2010

• not unreasonable for senior priest AT THE TIME
• institutional sexual abuse by members of their own catholic church was not recognised as being a widespread phenomenon

Question 9

Bolton v Stone

Answer 9

LIKLIHOOD/PROBABILITY OF DAMAGE - factors reasonable person takes into account

asses whether D was negligent in light of likeliness of damage (Here it wasn’t likely so D wasn’t negligent)

Question 10

Wagon Mound II

Answer 10

Followed Bolton v Stone (likeliness of damage)

Question 11

Whippey v Jones

Answer 11

Application of Bolton v Stone

• likeliness of dog doing the damage was low so not negligent

Question 12

Paris v Stephney Borough Council

Answer 12

GRAVITY OF HARM - factors reasonable persons takes into account

HL assess whether D is negligent in light of gravity of harm

(only one eye good)

Question 13

Cost of Precautions (quote)

Answer 13

Bolton v Stone - “i do not think it would be right to take into account the difficult of remedial measures”

Question 14

Latimer v AEC

Answer 14

COST OF PRECAUTIONS - factors reasonable persons takes into account

• assess whether D was negligent in light of cost of precautions

Question 15

Woolridge v Sumner

Answer 15

CONTEXT can be taken into account re: whether D was negligent

• sporting events, for competition
• what counts as negligence is much lower
• negligence would be “a reckless disregard of safety” (has to be much more serious than an error of judgement or a lapse of skill)

Question 16

Condon v Basi

Answer 16

amateur footballers, D breaks C’s leg

• standard of care also modified for expertise
• more expertise, standard of care is higher

Question 17

Blake v Galloway

Answer 17

bark throwing at each other

• context = activity
• standard of care lower than if C was just walking through the park

Question 18

Watt v Hertfordshire CC

Answer 18

EMERGANCY situations can be taken into care

• firefighter injured
• no DOC because saving a life

Question 19

Daborn v Bath Tramways Motor Co

Answer 19

• Asquith LJ (obiter) – talks about if trains were restricted to 5mph, there would be less accidents but our national life would be intolerably slowed down
• The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk

Question 20

King v Sussex Ambulance

Answer 20

• CONFIRMED life-saving purpose of D means lower standard of care is imposed
• Ambulance service is not liable due to the fact it was an emergency situation of saving a life
• buxton LJ (obiter) concerns about this principle that altruistic purpose of D means a lower standard of care is required

Question 21

COMPENSATION ACT 2006 S.1

Answer 21

When considering standard of care, have regard to whether requirement to take those steps might:
a) Prevent a desirable activity from being undertaken at all, to a particular extent, or in a particular way

b) Discourage persons from undertaking functions in connection with a desirable activity

Question 22

Sutton v Syston Rugby Club

Answer 22

CA said rugby matches are obviously desirable activities under s.1 of the act

CA said it is important not to set standard of care too high to make it discouraging for amateur organisers to organise these sports

Question 23

SOCIAL RESPONSIBILITY AND HEROISM ACT 2015

Answer 23

1. When considering whether a person was negligent/breached statutory duty, steps taken to decide whether person met standard of care, courts must consider:
2. SOCIAL ACTION (benefit of society?)
3. RESPONSIBILITY (responsible approach?)
4. HEROISM

BUT if D exhibits these things, doesn’t mean D isn’t liable – just means courts must take it into account

Question 24

Morton v William Dixon

Answer 24

can look at other industry standards in two ways:

ONE – the thing which D did was not a thing commonly done by other persons in like circumstances

TWO – the thing D did was so obviously wanted, it would be folly and negligent to fail to provide it

Question 25

Baker v Quantum Clothing Group

Answer 25

Look at what health and safety said to see if employer was negligent

Question 26

Chipchase v British Titan Products Co

Answer 26

CA rejected argument that said you can look at statutory standard when assessing DOC

• unless statutory standard actually applies, don’t look at it

Question 27

United States v Carroll

Answer 27

Learned Hand Formula

B

Question 28

Bolam v Friern Hospital Management Committee

Answer 28

(break bone electric shock)

Q becomes: was what was done in accordance with a practice accepted as proper for a reasonable body of medical men skilled in that particular art

Question 29

Bolitho v City & Hackney

Answer 29

• body in Bolam, has to be RESPONSIBLE (endorsed body)
• and has to be LOGICAL basis
• if choice of treatment involves weighing up risks/benefits, essential to show experts have undertaken a balancing assessment

Question 30

Montgomery v Lancashire Health Board

Answer 30

exception to Bolam/Bolitho

• negligence if D failed to warn patient about risks of treatment
• patients have a right to information about all material risks

Question 31

Moy v Pettman Smith

Answer 31

lawyer situation
- D is “paid for her opinion not her doubt”

• D shouldn’t have to explain D’s reasons to persons who pays fees
• STRIKING CONTRAST TO Montgomery which says give full information so C can make his own decision (here D doesn’t have to explain reasons for decision re: litigation)

Question 32

Wilsher v Essex Area Health Authority

Answer 32

inexperience is no defence

duty is tailored to acts which doctor elects to perform, not doctor himself

Question 33

RES IPSA LOQUITAR

Answer 33

Scott v London & St Katherine Docks Co

where thing is shown to be under management of D and his servants

and in the ordinary course of dealings, accidents like this does not happen if those who have management used proper care

Question 34

George v Eagle Air Services

Answer 34

D crashed plane, killing C
Plane was deemed airworthy so accident should not have happened

• res ipsa loquitur
• if no evidence, then negligence

Question 35

Widdowson v Newgate Meat Corporation

Answer 35

C hit by D whilst walking on road - evidence that it was a clear night and ordinarily it wouldn’t happen

• res ipsa loquitur
• no one present evidence so D was guilt
• CN though, reduced by 50%