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)
Bolam v Friern Hospital
Did D act with the same level of skill and competence expected from a person within the same field or work? If not, they have fallen below the standard of care.
Criticisms of Bolam
once a professional states that is how they would conduct themselves the D is relieved from liability
Bolitho v Hackney HA
this amended the Bolam test, the practice conducted by D must be of a logical basis. This is a minor adjustment to rule out one professional body defending a negligent professional.
Wilsher v Essex Health Area Authority
A junior doctor still owes the same standard of care as a qualified doctor
What is meant by did D fall below the standard of care?
This is a question of fact, the court consider these factors to determine if they fell below the standard of care:
- The likelihood of harm
- The seriousness of harm
- The social utility of D’s act
- Cost of avoiding harm
What is meant by ‘the likelihood of harm’ in establishing if D fell below the standard of care?
A higher probability of an accident leads to an increased likelihood of a breach
What is meant by ‘the seriousness of harm’ in establishing if D fell below the standard of care?
The more serious the potential injury, the increased likelihood a breach ill be imposed
What is meant by ‘the social utility of D’s act’ in establishing if D fell below the standard of care?
social utility refers to matters relating to the general public (e.g. actions undertaken in an emergency). The higher the social value of the activity, the more likely there is too be a breach
What is meant by ‘the cost of avoiding harm’ in establishing if D fell below the standard of care?
The lower the cost of preventing harm the increased likelihood there will be a breach
Northern Western Utilities Ltd v London Guarantee and Accident Co Ltd
“The degree of care […] must be proportionate to the degree of risk [of harm]”
(related to likelihood of harm in factual question did D fall below the standard of care?)
Bolton v Stone
Likelihood of harm:
FACTS: C was a passer-by who was struck by a cricket ball, she said that this was a breach of D’s duty.
HELD: HL held there was no breach of duty because the likelihood of harm was low. The cricket ground was surrounded by a 17ft high fence and the batsman was 80 yards away. This was the 6th ball in 30 years to be hit out the ground, therefore probability of harm was very low
Watt v Hertfordshire County Council
Social utility of act (e.g. holding fire service liable in an emergency)
FACTS: the fire service where called to an emergency requiring a jack. They had to use a substitute vehicle as the usual vehicle was in use. On route, the driver had to perform an emergency stop causing the jack to shoot forward and injure C
HELD: it was held there was no breach of duty because the fire service had a limited time to act. This is also related to public policy reason where courts are hesitant to impose a duty on public authorities.
Latimer v AEC Ltd
Cost of avoiding harm (could also use Stepney)
FACTS: a storm caused a factory flood leaving the floor covered in an oily residue. D had put up warning signs and places saw dust to make it as safe as possible. C later slipped and broke their ankle.
HELD: HL held there was no breach of duty. D had to take reasonable precautions to minimise risk (which they had done), there was no duty to close the factory.
what is res ipsa loquitur ?
A doctrine that presumes D was negligent if they had exclusive control over what caused the injury. There is no evidence that they were negligent, but there negligence is the only explanation
This is rebuttable
Scott v London and St Katherine Docks Co
C was injured when sugar fell from a crane and hit him. C couldn’t prove what made the sugar fall. Courts relied on res ipsa loquitur to impose a duty
Montgomery v Lancashire HB
Bolam doesn’t apply if there has been a disclosure of risks
