Breach of Duty Flashcards
What does establishing a breach of duty involve showing
• that D’s conduct has fallen below the standard of care required in that circumstance
What are the two breach questions
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).
Is breach about blameworthiness? Case to illustrate
no, a person can be in breach without being morally culpable: Nettleship V weston
Which case defines what the reasonable man would do
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’
What is the standard for identifying a breach
objective e.g. Nettleship V Weston “a learner driver may be doing his best but his incompetent best is not good enough” Denning
Which case defined the reasonable man as the man on the clapham omnibus
Hall V Brooklands Auto-Racing Club
How did Lord Macmillan describe the reasonable man in Glasgow Corporation V Muir
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’
D’s conduct is judged on all cirrcusmtancs of the case, what will the court not consider
while it may take into account all external circumstances, the law will not adapt to allow for personal ones
Which case affirms that the courts have continually rejected the notion that the standard should be judged subjectively
Dunnage V Randall
There are certain types of D to who additional rules apply in determine the standard of care, who does that include
Children, D acting in an emergency situation, D engaging in sports and D claiming to have a special skill
What is the standard of care for a child
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.
Which case first set pursuance present on this fact
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’
Which english case followed the principle set in McHale V Watson
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.
As a child gets older what happens to the standard of care
it increases exponentially towards the standard of care required by an adult
What is the standard of care when a child engages in an adult activity? and case to demonstrate
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. )
Although the child may not be liable who may be liable instead? and case
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)
What is the position of incapacity in the case of Mansfield
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.
Positon incapaicty in Dunnage V Randall
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).
In relation to people with a skill, how is the question of breach decided
Apply the ‘Bolom Test’
What is the first question in the Bolom Test?
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’
How did McNair describe the first stage of the Bolom test?
‘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’
Which case about earring piercing showed this standard of care
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.
Which case indicates the first stage of the boom test (Stage Hypnotist)
Gates V McKenna: the well-known stage hypnotist was judged by the standard of of a reasonably careful exponent of stage hypnotism.’
What is the second stage of the Bolom test
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.’
