Breach of Duty

Question 1

The reasonable man test

Answer 1

To decide if D has breached his duty, the court considers what was expected of him and did he fail to do it, or do it but to a poor standard. D is judged against the standards of the reasonable competent man doing the same activity as D (Blyth).

Question 2

Some of D’s characteristics will be relevant, if the affect the reasonable standard of care:

Answer 2

• Professional
• Child
• Inexperience

Question 3

Professional

Answer 3

If D is a professional, he is judged against that standard. In Bolam v Friern Hospital D was judged against what the reasonable competent doctor would have done.

Question 4

Child

Answer 4

If D is a child, he will be compared to a reasonable child of the same age (Mullins v Richards).

Question 5

Inexperience

Answer 5

However… because the reasonable man test is objective, it does not take account of Ds characteristics. Therefore, if D is inexperienced, this will be irrelevant and he will still be liable for his breach. In Nettleship v Weston Ds learner driver status was irrelevant as D was judged against the reasonable competent driver.

Question 6

Risk factors

Answer 6

Any other evidence/factors that would affect the reasonable standard of care

Question 7

Claimants characteristics

Answer 7

• Sometimes Cs characteristics need to be considered if it would mean the reasonable man should take more care.
• In Paris C worked for D and was already blind in one eye, which D was fully aware of. Although it was not common practice for employees to be provided with safety glasses, because of Cs condition, D was obliged to take more care. Therefore, D owed C a higher standard of care.

Question 8

Magnitude of risk

Answer 8

The courts look at the size of the risk and the precautions taken to determine whether there has been a breach or not.
 -If the risk is large, D owes a higher standard of care so needs to take more precautions, otherwise there will be a breach of duty.
 -Haley v LEB: C fell into the hole left by the workmen. As the risk of this was large and they had not taken reasonable precautions, there was a breach of duty.
 -However, if the risk was small and D had taken reasonable precautions to prevent it, there will not be a breach, as the standard of care owed is lower.
 -Bolton v Stone: C was injured by a cricket ball outside the grounds but as the risk of this was small because of the high fence etc, there was no breach of duty.

Question 9

Cost and practicality of taking precautions

Answer 9

• The precautions taken must be proportionate to the standard of care expected.
• The court does not expect all possible precautions to be taken, but they will consider the cost and practicality of precautions, against the risk.
• If D takes all reasonable precautions to prevent the damage, there will not be a breach of duty if it still occurs.
• In Latimer v AEC following a flood in Ds factory, he took all reasonable precautions but could not completely prevent the risk of C slipping (other than close the factory which was unreasonable) so there was no breach of duty.

Question 10

Social utility

Answer 10

• Where D is acting to prevent greater harm, he may not be responsible for any damage as a result.
• If D is acting out of social utility, they owe a lower standard of care.
• In Watts v Herts CC D was responding to an emergency when he crashed into C. As D was preventing greater harm, there was not a breach of duty.
• Lord Denning “the saving of life and limb justifies the taking of a considerable risk.”