Breach of Duty

Question 1

What does establishing a breach of duty involve showing

Answer 1

• that D’s conduct has fallen below the standard of care required in that circumstance

Question 2

What are the two breach questions

Answer 2

1) The normative questions- what is the minimum that should have happened (what is the standard)
2) factual question- what did happen (did D fall below that standard).

Question 3

Is breach about blameworthiness? Case to illustrate

Answer 3

no, a person can be in breach without being morally culpable: Nettleship V weston

Question 4

Which case defines what the reasonable man would do

Answer 4

Blyth V Birmingham Waterworks Co per Alderson “Negligence is the omission to do something which a reasonable man, guided upon whose considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’

Question 5

What is the standard for identifying a breach

Answer 5

objective e.g. Nettleship V Weston “a learner driver may be doing his best but his incompetent best is not good enough” Denning

Question 6

Which case defined the reasonable man as the man on the clapham omnibus

Answer 6

Hall V Brooklands Auto-Racing Club

Question 7

How did Lord Macmillan describe the reasonable man in Glasgow Corporation V Muir

Answer 7

The reasonable person is: independent of the idiosyncrasies of the particular person whose conduct is in question’ not ‘unduly timorous’ or overly fearless and ‘free both from over-apprehension and over-confidence’

Question 8

D’s conduct is judged on all cirrcusmtancs of the case, what will the court not consider

Answer 8

while it may take into account all external circumstances, the law will not adapt to allow for personal ones

Question 9

Which case affirms that the courts have continually rejected the notion that the standard should be judged subjectively

Answer 9

Dunnage V Randall

Question 10

There are certain types of D to who additional rules apply in determine the standard of care, who does that include

Answer 10

Children, D acting in an emergency situation, D engaging in sports and D claiming to have a special skill

Question 11

What is the standard of care for a child

Answer 11

the standard of conduct that can be expected of a reasonable child of the D’s same age, not he standard of an ordinary prudent adult.

Question 12

Which case first set pursuance present on this fact

Answer 12

McHale V Watson (D was 12 and threw a sharp rod which ricocheted off a post hitting a girl.) It was held that the • the boy was not negligent by applying the lower standard. But it was emphasised that the standard still remains objective’

Question 13

Which english case followed the principle set in McHale V Watson

Answer 13

Mullins V Richards (15-year-old school girls fencing with rulers which snapped and flew into C’s eye blinding them). It was held that a lower standard should be applied, and that the injury could not have been reasonably foreseeable to the children, the game was common and they had never been told that it was dangerous.

Question 14

As a child gets older what happens to the standard of care

Answer 14

it increases exponentially towards the standard of care required by an adult

Question 15

What is the standard of care when a child engages in an adult activity? and case to demonstrate

Answer 15

the standard is the standard required from an adult as in Zanner V Zanner ((child drove his father’s car and ran over his mother, it was held that the child could be negligent). Note this is only persuasive authority and there is no English authority on this point. )

Question 16

Although the child may not be liable who may be liable instead? and case

Answer 16

the parent for failing to exercise proper supervision and control Carmathenshire County Council V Lewis (unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either open or very easy for him to open, was held to disclose negligence on the part of the school authority. The teacher with immediate supervisory duties over the child was acquitted of negligence)

Question 17

What is the position of incapacity in the case of Mansfield

Answer 17

Mansfield V Weetabix: : The CoA held that a driver who becomes unable to control his vehicle will be not be liable for damage caused if he loses control of his vehicle which he is unaware of (and should not have been reasonably aware of), which suddenly manifests itself causing loss of control.

Question 18

Positon incapaicty in Dunnage V Randall

Answer 18

The Court was asked to consider whether a person’s mental state should be taken into account when looking at the standard of care owed by a party. In this case, Mr Randall was suffering from schizophrenia and whilst visiting his nephew (the Claimant), he poured petrol over himself, causing him to die and leaving his nephew, the Claimant with serious burns). The CoA held that he had acted negligently despite his lack of capacity and mental illness and the court rejected the notion that the standard of care should be adjusted to be subjective and take account of the personal characteristics of the defendant (with the exception of children).

Question 19

In relation to people with a skill, how is the question of breach decided

Answer 19

Apply the ‘Bolom Test’

Question 20

What is the first question in the Bolom Test?

Answer 20

Where the D purports to have a special skill, the D’s conduct is judged according t the standard of a reasonably person having the skill the D claims to possess. It is not judged by the standard of a reasonable person’

Question 21

How did McNair describe the first stage of the Bolom test?

Answer 21

‘is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill’

Question 22

Which case about earring piercing showed this standard of care

Answer 22

Phillips V Williams Whitely Ltd: It was held that D who negligently pierced C’s ears, could not be expected to reach the same standard as a qualified surgeon.

Question 23

Which case indicates the first stage of the boom test (Stage Hypnotist)

Answer 23

Gates V McKenna: the well-known stage hypnotist was judged by the standard of of a reasonably careful exponent of stage hypnotism.’

Question 24

What is the second stage of the Bolom test

Answer 24

the law will not regard professional D as having fallen below the standard of care if it is shown that the D’s conduct is regarded as proper by one responsible body of professional opinion. This is the case even if some other members of the D’s profession may think the conduct is negligent.’

Question 25

Case to demonstrate the second principle of the Bolom test

Answer 25

Bolitho V City and Hackney Health Authority (The doctor gave evidence that had she attended she would not have intubated. Another doctor gave evidence that they would not have intubated. The trial judge applied the Bolam test and held that there was no breach of duty.) Here the Bolam standards apply to omissions. It needs to be a competent professional opinion with a logical basis, and weighing up of risks and benefits. If it does not, and the professional opinion does not stand up to logical analysis the court may not regard that as a proper body of responsible opinion.

Question 26

Can a court declare negligence despite support of the body/ professional opinion? Case

Answer 26

yes- Marriott V West Midlands Regional Health Authority.

Question 27

Does the Bolom test apply to non-medical cases

Answer 27

Yes
Ski-instructors- Anderson V Lyotier
Barristers - ‘the standard of care requires a C to show that the error was one which no reasonably competent member of the relevant profession would have made, Arthur J S Hall & Co V Simons.

Question 28

Calculating the standard- foreseeability- what does this mean

Answer 28

The reasonable man will only be able to guard against foreseeable risks.

Question 29

Case to indicate foreseeability

Answer 29

Roe V Minister of Health (Vacines stored in test tubes which had microscopic cracks, which resulted in comtaination.) Held, that one is only “judged in light of knowledge which then was or ought reasonably to have been possessed.”

Question 30

Calculating the standard- Risk (likelihood X Magnitude)- what does this mean

Answer 30

The greater the likelihood of the harm, the greater the care expected of a reasonable man to avoid the harm

Question 31

In which case did Lord Macmillan describe risk

Answer 31

Glasgow Corporation V Muir ”the degree of care required varies directly with the risk involved”

Question 32

Cricket case

Answer 32

Bolton V Stone (C lives near a cricket gorund, where a ball is hit outside the ground, which hits him in the face- he claims the cricket ground owe a duty of care to him and have failed to exercise reasonable care by not erecting a fence around the grounds) HoL held there was no breach –“an ordinarily careful man does not take precautions against every foreseeable risk.” What is more “the risk was so small that a reasonable man in the position of the appellants.. would have thought it right to refrain from steps to prevent the danger”

Question 33

Case that demonstrates that if there is a particular vulnerability the standard will increase

Answer 33

•Haley V London Electricity Board (blind man)

The greater the potential harm, the greater the care expected of a reasonable man to avoid the harm

Question 34

Ananother case where there was a known vulnerability

Answer 34

if a specific vulnerability is know the standard of care must be higher- Paris V Stepheny Borough Council: (Mrs Paris was blind in one eye, therefore the consequences would be significantly higher)

Question 35

Calculating the standard- cost or precautions, what does this mean

Answer 35

The reasonable man will take practical precautions to reduce the risk. The more reasonably practicable the precautions that could be taken to avoid harm, the greater the care expected of a reasonable man to take those precautions. e..g Bolton V Stone “the only practical way in which the possibility of danger could have been avoided would have been to stop playing cricket on this ground”

Question 36

What is the position taken for costly precautions, when will a reasonable man address such a risk- case

Answer 36

the more serious the risk must be before the reasonable man would take them: Latimer V AEC Ltd: (C worked in a factory, which was flooded. D put down sawdust in order to allow work to continue safely. On appeal it was held there was no breach of duty- no duty to close the factory, D only had to take reasonable precautions to minimise the risk. So no need to incur the great cost of closing the factory.

Question 37

If the precaution is easier what does this mean

Answer 37

the more likely a reasonable man is to take it e.g. Haley V London Electricity Board

Question 38

If the precaution would not prevent a risk would the reasonable man take it?

Answer 38

no

Question 39

If the precautions would create a greater risk he reasonable man would not take it case

Answer 39

West Telford and Wrekin Borough Council (placing cones on the ice rink would create a further risk)

Question 40

If the risk is obvious is there a duty to warn against is>

Answer 40

Thomlinson V Congleton Borough Council (A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger)

Question 41

Recognising the standard of care- social utility what does this mean

Answer 41

The more socially useful the D’s conduct the less likely it will be considered unreasonable. The reasonable man will take more risks to engage in soically useful conduct.

Question 42

Case which justifies abnormal risk

Answer 42

Daborn V Bath Tramways: ‘if all trains in this country were restricted to 5mph, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficient important, justifies the assumption of abnormal risk’

Question 43

Which case affirms social utility

Answer 43

Tomlinson V Congleton Borough Council affirms social utility (The defendants had created a lake on the park which was surrounded by sandy banks. Swimming was not permitted in the lake and notices were posted at the entrance saying “Dangerous water. No swimming”. However despite this, many people did use the lake for swimming. House of Lords held: The Council were not liable. “it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment of the remainder of society” and “why should the council be discourage by the law of tort from providing facilities for young men and young women to enjoy themselves in this way?”. “But that it no reason for imposing a grey and full safety regime on everyone”

Question 44

Social utility and saving lives

Answer 44

Watt V Hertfordshire County Council: (A woman had been involved in a traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station. The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck. There was no means for securing the jack on the truck and the firemen were instructed to hold it on the short journey. In the event the truck braked and the jack fell onto the claimant’s leg causing severe injuries.) It was held there was no breach of duty, the emergency of the situation and utility of the defendant’s conduct in saving the life outweighed the need for precaution.