Breach of Duty Flashcards
What is negligence
Omission to do something which is a reasonable man would do or something which a reasonable man would not do
Glasgow Corporation v Muir
Defendant was the owner of a tea room. Customer walked through the room to get hot water and accidently dropped it on children. Was an accident but claim brought against the owner for not clearing the room before the hot water was brought through. Court disagreed that the defendant had acted negligently. Reasonable man is considered to be free from over-apprehension and from over confidence.
Nettleship v Weston
Learner driver crashes and instructor is badly injured. Driver owes a duty of care to passengers. All drivers must drive in a good manner as a driver of skill, experience and care who iis in sound mind and limb, who make no errors of judgement
The hand formula
The degree of care demanded of a person by an occasion is the resultant of three factors.
Likelihood that his conduct will injure others, taken with seriousness of the injury if it happens and against the interest which he must sacrificed to avoid the risk.
Foreseeability of Harms
Roe v Minister of Health
- Claimant became paralysed - was injected with contaminated anaesthetic
- Had to keep anaesthetic in glass bottle which were then placed in a chemical.
- Glass bottle had little cracks in it.
- Not foreseeable, Harm had to be reasonably foreseeable.
Likelihood of harm Bolton v Stone
Bolton v Stone
- Claimant was hit by a cricket ball
- Was foreseeable because it happened before.
- Claimant argued owners should have taken more care
- Court disagreed - an ordinarily careful man does not take precautions against every foreseeable risks, he takes precautions against risks which are reasonable likely to happen
Likelihood of harm Haley v London electricity board
Defendant dug a trench in foot path - warned pedestrians by putting a long hammer on ground
Blind person did not notice, fell in the ground and injured himself.
Need to take precautions against those more vulnerable as well.
Seriousness of harm
Paris v Stepney
Claimant was working in a garage, metal chip flew off and blinded him in his eye
Claimant now completely blind. His employer was negligent in not giving him safety googles
Defendant did not think this was necessary because consequences was that serious for other employees
Court disagreed - reasonable person takes more care if there’s risk serious harm.
Cost and Practicality of precautions - Latimer v AEC
Latimer v AEC
- Defendant owned factory, after rainstorm, floor became flooded
-Floor become slippery - used sawdust to prevent workers from slipping
-Owner ran out of sawdust and claimant fell on part of the floor without sawdust.
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Cost and practicality of precautions - The wagon mound
Updated for clarity
Where the cost of avoiding damage is small the court will likely hold someone to be liable for not avoiding the damage.
The wagon mound case
- Oil Spilled from harbour into water
- Although the likely hood of the oil catching on fire was extremely low he was still negligent because to avoid this he simply had to turn off a tap. Cost of precautions was very small. So defendant was liable.
Precautions
Smith v Littlewoods organisation
No duty of care
If there had been a duty defendants resources would need to be looked at.
If the defendant was on substantial means it may have been expected that he employed a security guard.
Watt v Hertfordshire Count council
Firefighter claimant sued his employer when a large piece of equipment fell onto him after he was instructed to not secure it to the truck.
Court of appeal concluded that the object which the defendant was trying o achieve was a relevant factor when determining the standard of care and not just the cost of taking precautions against harm.
S1 Compensation act 2006
A court when considering a claim in negligence may have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken.
or discourage persons from undertaking functions in connection with a desirable activity.
Social Action, Responsibility and Heroism act 2015
Social: Court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.
Responsibility: whether the person in carrying out the activity in which the breach of duty occurred demonstrated a responsible approach ton protecting others safety.
Heroism: Whether the alleged negligence or breach of statutory duty occurred when the person as acting heroically by intervening in an emergency to assist an individual in danger.
Standard of care for children
Mullin v Richards
Two school girls, fighting with rulers, ruler snapped and she became blind.
Objective test - reasonable 15 year old wouldn’t appreciate the risk. Children do not have the same capacity as adults to respond to and asses risk
Palmer v Cornwall
Children were playing outside with only 1 teacher supervising 300 students. One student throws a rock at a seagull, it misses and hits claimant in the eye.
School wasn’t acting reasonably in that situation - found liable as they failed to take reasonable care.
Defendant with mental disorder. Principle
Dannage v Randall
Claimant was injured when trying to prevent his uncle setting fire to himself. Claim brought by nephew to his uncles estate.
The standard of care will not be adjusted to take account of lack of capacity. Having a mental illness will not excuse a person from liability in negligence unless the illness entirely eliminates fault or responsibility.
The basic professional standard
Bolam v Friern Hospital Management
When a situation involves skill or competence, the test is whether there has been negligence or not is not the rest or an ordinary person but a test of someone with a reasonable skill.
The basic professional standard: inexperienced professionals
Wilsher v Essex Area Health Authority
A junior doctor doing a task that is typically required by more senior on.
If they do this task, they are held to the standard of that task. In this the case the standard of the more experienced doctor.
Amateurs carrying out a professional activity
Well v Cooper
- Defendant fixed a door but door handle fell off and injured claimant
Claimant argued defendant failed to take reasonable care
-Carpenter was held to the standard of a regular DIY enthusiast not a professional
The professional standard: conflicting bodies of opinion
Bolam v Frien Hospital management committee
- Claimant was given electro compulsive theory without a relaxing drug.
- When the current passed through him he broke his hip
- Some doctors agreed with the practice to not give him a relaxing drug some disagreed
Court - A doctor is not negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men.
Application of the Bolam test
Maynard v Midlands Health Authority
-Claimant underwent biopsy on their throat which led to damage to vocal cords
-Claimant said defendant was negligent to perform the biopsy
-There were other doctors who disagreed with the defendants practice
Judge agreed with claimant. House of Lords - Judge is not allowed to prefer claimants opinion over defendants opinion as long as their is a agreeing body.
Limits of Bolam: the Bolitho principle
Bolitho v City and Hackney Health Authority (1998)
- Claimant 2 year old boy in hospital, breathing difficulties. Doctor was called twice but did not respond.
-She argued that the only possible alternative was putting a tube down his neck which she wouldn’t have done anyway.
- She had a body of opinion supporting her. 3/8 - Following Bolam, means there is no negligence
House of lords disagreed - court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnostics because there’s a body supporting him.
Logical Basis
In cases involving the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, Will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter’
