Breach of Duty Flashcards
Two questions to be considered for breach:
1) How the defendant ought to have behaved in the circumstances?
2) How the defendant did behave?
A tests of reasonableness quotes and case origins:
Blyth v Birmingham Waterworks (1856), Anderson B: “negligence is the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
What would the reasonable man have done in the defendant’s circumstances? He is not all-seeing and all-knowing, and makes reasonable mistakes.
Objective standard:
Nettleship v Weston [1971]
All drivers, including those learning to drive, are held to the same standard: ‘the standard of care… is measured objectively by the care to be expected of an experienced, skilled and careful driver’.
Lord Denning: “The learner driver may be doing his best, but his incompetent best is not good enough.”
Ensures road victims do not lose out simply because they were unlucky to be hit by learner.
Age - relevant characteristic to objective standard:
Salmon J: “whether any ordinary child of 13 1/2 can be expected to have done any more than this child did. I say, ‘ordinary child’. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary child of 13 1/2.”
Orchard v Lee [2009]
Two 13-year-olds playing tag, one ran backwards into supervisor and hurt her.
A child will only be held liable in negligence if their conduct is careless to a very high degree.
Common practices and special skills - characteristic to objective standard:
Where a person professes to have a special skill or competence, the law requires that when dealing with people in the context of a calling or profession they do so with an appropriate level of competence. “Nobody expects the passenger on the Clapham omnibus to have any skill as a surgeon, lawyer, pilot, or a plumber, unless he is one: but if he professes one, then he must show such a skill as any ordinary member of the profession would display.”
Phillips v William Whitely [1938]
Bolam v Friern Hospital Management Committee
[1957]
Patient given electro-convulsive therapy and strapped down but not given a relaxant, broke hip. At the time, medical profession had conflicting views on whether it was necessary to administer relaxant drugs.
“… if you are satisfied that they were acting in accordance with a practice of a competent body of professional opinion.” This is the case even if it is a minority viewpoint.
Bolitho v City and Hackney Health Authorirt
[1998]
Young boy suffered brain damaged and later died of a cardiac arrest falling respiratory failure. Two respiratory attacks preceded his death, in which a doctor was called but didn’t arrive, as a result, wasn’t intubated.
The doctor said that even she had attended she wouldn’t have intubated the boy, her failure to attend had not caused his death.
‘Doctor knows best’ only ‘if he acts reasonably and logically and gets his facts right.’
Probability the injury will occur:
The more likely (foreseeable) the outcome, the greater possibility the courts will find the defendants liable for taking steps to avoid it.
Bolton v Stone
Claimant hit on heard by cricket ball from the adjacent pitch. Although there was a few balls hit that substantially (not exceptionally) over 30 years, the chance was so low that a reasonable person would not have taken precautions to stop it happening.
Seriousness of the injury (gravity of harm):
The more serious the potential injury, the more likely the defendant will be found to have fallen below the required standard: “the law expects of a man a great deal more in carrying a pound of dynamite than a pound of butter” - Singleton LJ.
Paris v Stephney Borough Council [1951]
A garage hand suffered serious injury when a metal chip went into his eye and made him blind. HoL agreed though chance was low, the seriousness should have been taken into account. Provision of safety Google’s was ‘obviously necessary when a one-eyed man was put to [this] kind of work’.
Social value of the activity:
The greater the social value of the activity, the more likely the courts will find it reasonable to have dispensed with safety precautions.
Watt v Hertfordshire County Council [1954]
A fireman was seriously injured by heavy-lifting gear when travelling in the back of a lorry in the way to an accident where a woman was trapped under a vehicle. The lorry had not been specially fitted to carry the gear in an emergency.
CoA held that the public benefit justified taking the risks associated with failing to adequately secure the lifting-gear in the back of the lorry.
“The commercial end to make a profit is very different from the human end to save a limb.”
