Breach of Duty Flashcards
What happens once a duty has been established?
It must be determined if D was negligent in performing their duty
If D falls below the ‘standard of care’ benchmark there has been a breach of duty
What is the definition of ‘negligence’ in a breach of duty?’
- “Negligence is the omission to do something which a reasonable man […] would do’
Where does the definition of negligence/breach of duty come from?
Blyth v Birmingham Waterworks
Blyth v Birmingham Waterworks
Definition of breach of duty:
“Negligence is the omission to do something which a reasonable man […] would do’
What is the standard of care? Where does it come from?
Donoghue v Stevenson -
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
This is an objective standard of reasonableness
What is the checklist for determining if there has been a breach of duty?
1) Was the riskof harm to C reasonably foreseeable?
2) The standard of care owed by the D to C
3) If D fell below this standard of care
If D caused the injury but can prove a reasonable person would have acted this way there will be no liability
Wagon Mound (2)
In the ‘was the risk of harm forseeable’ the courts should find that a reasonable person must be able to see a ‘real’ and ‘not far-fetched’ risk of harm to the C
What are the two standards of care?
1) a general standard of care
2) a standard of care owed by professionals
This is a question of law
Nettleship v Weston
The standard of care if to be measured objectively by the care to be expected of an experienced, skilled and careful driver”
Condon v Basi
Lack of skill does not justify a lower standard of care
D was in breach of duty because the tackle was reckless. D tried to argue because he was not as skilled as a professional footballer he did not fall below the standard of care. C accepts some risk of injury but not those outside the game
Mullin v Richards
if the case involves a child, then the degree of care and foresight is what is reasonably expected of a child, not an adult.
- FACTS: D and C were fencing with rules in a lesson. The ruler snapped and blinded C in one eye.
- HELD: HL held that a 15-year old, unlike an adult, might not foresee this risk and she was involved in no other incidents of this nature. Therefore, there was no breach.
Wells v Cooper
D fitted a new door handle for C. It was not attached securely, C subsequently injured themselves opening the door. It was held D did not fall short of the standard of care because he only had to exhibit a standard of care of a DIY enthusiast, not a professional carpenter.
Philips v Whiteley
C caught a disease while getting a piercing, and the claimant tried to argue they should be held to the same standard as a surgeon. The court disagreed and held they are required to show the skill of their profession i.e. a jeweller, not a doctor.
Paris v Stepney BC
Related to seriousness of harm in stage 3:
- FACTS: C was already blind in one eye. A chip of metal flew into his eye at work leaving him blind. C said there was a breach as he had not provided goggles.
- Held: HL held D was in breach because the seriousness of the harm which could/did occur(rendering C blind). D owed the particular C a duty (knowing of his characteristics), not a reasonable fully sighted employee, therefore they had to take greater steps to protect him.
James v Boyce
In an emergency, C will be measured against a reasonable person in an emergency.
(D jumped out of a carriage thinking it would overturn, deemed it was not contributory negligence and D had breached their duty)
