BREACH OF DUTY Flashcards
Basic facts about a breach of duty?
- Must be a duty of care in place for there to be a breach.
- Standard of care is a breach concept, different to duty of care.
- Victim cannot claim damages from an accident - fault must be established.
- We are looking at the behaviour of D, whether we can establish that they are at fault. Looking at particulars of the case.
- Cases are useful if faced with a similar situation.
- Judges are not involved - they are just there to judge, must present all relevant precedents to the judge.
The ‘Nature’ of the breach?
- A matter of judgement rather than strict application of legal rules.
- It cannot be proved that a person was negligent; one can merely argue that a person was negligent and hope to persuade the judge.
Matter of judgement?
- A question of how D ought to have behaved - what standard of care should have been exercised? A question of LAW e.g how D should have drove a car
- Did D’s conduct fall below this standard? A question of FACT. A standard of care is the minimum level of which someone doing a particular activity should do it/should behave e.g the minimum level of how someone should drive a car.
Reasonable man/person?
- This is the measure they should apply - this test.
- ‘the man on the clapham omnibus’ - HALL V BROOKLANDS
- ‘A traveller on the london underground’ - MCFARLANE V TAYSIDE HEALTH BOARD
^ = the average person.
Objective element = ‘the man on the clapham bus’ AKA average person.
Subjective element = what personal characteristics does the judge have in mind for the RM - gender, race, religion, class? Is the RM test any more than a vehicle for judges to apply their concept of reasonableness? Judges will bring in their subjective element.
- The standard of care is not a standard of perfection (Donoghue v Stevenson)
- ‘what would the reasonable person have done in the circumstances’ - this is standard of care.
Is it realistic for law to seek to apply the same standard of care to everyone? (case law to support)
NETTLESHIP V WESTON =
D was learner driver - court said even though it was a learner, still a reasonable person was the reasonably competent qualified driver - objective SoC is not a standard of perfection. Decision in this case ensure victims do not lose out because they were unlucky enough to be hit by a learner.
BIRCH V PAULSON =
D was not liable for injuries suffered by drunk pedestrian who walked in front of her car. ‘‘there was nothing here to require D as a reasonably careful driver to act in any other way than a way in which she did not act given the situation in which she found herself at the time”
ROBERTS V RAMSBOTTOM=
Suffered stroke while driving - he realised he felt unwell; just not the level of seriousness. There was some pre-warning as he felt unwell beforehand, it was a warning not to drive - liable.
MANSFIELD V WEETABIX =
No breach of duty for causing an accident as the D unaware that unwell.
BROWN V PATERSON =
A criminal conviction can be helpful to a claimant, D wasn’t acting appropriately. But it is not proof that claimant preached a duty - this case involved the police = reasonable police driver expected to drive more carefully and skillfully.
Children and standard of care?
- Children are treated differently from adults in assessing the standard of care they should meet.
- There is no minimum age for negligent liability. In relation to the breach question/standard of care - instead of the reasonable person; it is more precise. Reasonable person ‘the average child of that particular age’. (Mullins v Richards)
Professionals and standard of care?
- if you are a professional, demonstrating a special skill or competence, then courts use a different test, based upon the profession in question. Test = must be more precise.
BOLAM V FRIERN HOSPITAL =
“a man need not possess the highest expert skill - it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that art”
The Bolam Test?
- Standard of the ordinary skilled man professing to have that special skill.
- Need not possess the highest expert skill
- Acted in accordance with a practice accepted by a responsible body, within the profession.
Criticisms of Bolam?
- Protective of professions
- Courts should set standards, not professions
- Focus on what IS done, rather than what should be done
- Marginally accepted practice permitted
- ‘responsible body’?
Key developments since Bolam? (using cases)
WILSHER V ESSEX AREA HEALTH AUTHORITY =
Said when considering bolam, not only does it need to be refined to the reasonable doctor in particular area of spcialism e.g heart surgeon, but the court needs to be mindful of the LEVEL of expertise of partciular D E.g Bolam test would apply to reasonable junior doctor - if junior doc was doing work of a consultant; would be of the reasonable consultant. They will be assessed at the level they were attempting to perform at.
BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY =
HoL emphasies to lower courts that expert witnesses are there to help judge make their decision, but not override it. Judge can depart from what they say if they feel it is appropriate. Not common - would be inappropriate as they do not have the expertise.
MONTGOMERY =
Explaining risks to a person is not governed by the bolam test - the requirement is normally to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternatives.
Foreseeable harm and risks?
The courts take into account:
1) the probability/risk of the injury
2) the seriousness of the injury
3) the cost of taking precautions
4) the social value of the activity
The probability and seriousness of the injury? (cases)
BOLTON V STONE =
Claimant hit by cricket ball that was hit out of ground - should owners have taken more precaution? Court said the risk of this happening was very low, the reasonable man would not have taken these precautions.
MILLER V JACKSON = contrasts with B v S - court held reasonable man would have taken precautions.
ROE V MINISTER OF HEALTH =
Claimants paralysed after being injected with contaminated item during a minor op - at the time of op, was unknown to hospital staff who didnt know of the dangers - the conduct of D is assessed at the time of alleged breach, a test of foresight not hindsight - if something seems to be acceptable at the time with low risk, it is unlikely to be considered negligent.
WILLIAMS V UNI OF BIRMINGHAM =
‘we must not look at what happened in the tunnel of 1974 through 2009/2011 spectacles’
PARIS V STEPNEY BOROUGH COUNCIL =
Serious injury left him fully blind - he was blind in one eye already - the provision of safety goggles was ‘obviously necessary when a one eyed man was put to this kind of work’
The cost of taking precautions and the social value of the activity?
LATIMER V AEC =
Factory flooded, mix of oil and water - put sawdust down, didnt have enough for whole factory - claimant slipped - the reasonable factory owner would not shut down factory - did his best.
KNIGHT V HOME OFFICE =
Argument that if prisoner received better psychiatric care, would not have killed himself - court recognised that while lack of funds could never be a complete defende to precautions - the facilities of a prison hospital were necessarily different to a specialist psychiatric hospital and say there was no breach of prison officers’
WATT V HERTFORDSHIRE COUNTY COUNCIL =
fire service called to road crash - fireman injured from carrying heavy equipment - social value = should take this risk.
SCOUT ASSOCIATION V BARNES =
The social value of an acitivty as a whole does not mean that all examples of that activity are acceptable, whatever the risk.
Compensation Act 2006
s1) A court considering a claim in negligence or breach of duty in determining whether the D should have taken certain steps to meet a standard of care have regard to whether the requirement to take those steps might:
- prevent a desirable activity from being undertaken at all, to a particular extent in a particular way or;
- discourage persons from undertaking functions in connection with a desirable activity.
SARAH Act 2015
- This act lists the matters - social action, responsibility and heroism - to which a court must have regard in determining a claim in negligence of breach of statutory duty.
