Breach of duty

Question 1

Basic test for breach of duty

Answer 1

Reasonable man

Blyth v Birmingham Waterworks Co

Question 2

Elements of the reasonable man test

Answer 2

a) Ascertaining objective standard of care
b) Determining factors used by the reasonable person
c) Special rules for professional negligence

Question 3

Ascertaining objective standard of care: strict approach

Answer 3

Personal characteristics that would affect D’s ability to take care are not included (Nettleship v Weston)

Question 4

Application of the strict approach: temporary disposition

Answer 4

Excluded (Barnett v Chelsea Kensington Hospital Management Committee)

Question 5

Application of the strict approach: age/gender

Answer 5

Included (Mullin v Richard)

Question 6

Application of the strict approach: disabilities

Answer 6

Ambiguous

Mansfield (no knowledge)
Dunnage v Randall (prior knowledge)

Question 7

Application of the strict approach: skills/professional standards/expertise

Answer 7

Included (Phillips v Whiteley)

Question 8

Overview of factors used by the reasonable person

Answer 8

Absolute factor: timing
Relative factors: likelihood of damage, gravity of harm, cost of precautions, context, purpose, standards (statutory, industrial etc)

Question 9

Absolute factor: timing

Answer 9

Roe v Minister of Health (glass containers with microscopic cracks containing anaesthetic that was contaminated)

Maga v Trustees of Birmingham Archdiocese of Roman Catholic Church (no awareness of sexual abuse in the Church, culture of disbelieving victims)

Problem: herd mentality, no incentive to do better

Question 10

Relative factor: likelihood of damage

Answer 10

The more likely, the higher the standard of care (Bolton v Stone, Whippey v Jones)

Breach not equals to creation of risk – don’t want to deter people from engaging in risky activities with low probability of harm

Problem: assumes that people make decisions on a balance of probabilities exercise before acting

Question 11

Relative factor: gravity of harm

Answer 11

The greater the gravity of harm risked, the higher the standard of care (Paris v Stepney Borough Council)

Question 12

Relative factor: cost of precautions

Answer 12

If cost is excessive, it would be unreasonable to engage, no breach (Latimer v AEC Ltd)

Question 13

Relative factor: context

Answer 13

Sporting context (Woodridge v Sumner, Condon v Basi)
Horseplay (Blake v Galloway)

Question 14

Relative factor: purpose

Answer 14

Starting point: was relevant (Watt v Hertfordshire CC, King v Sussex Ambulance)

Now: lesser importance after statutes

a) S.1 of Compensation Act 2006 (Sutton v Syston Rugby Football Club Ltd)
b) Social Responsibility and Heroism Act 2015 (e.g. King v Sussex Ambulance)

Question 15

Relative factor: statutory/industrial standards etc

Answer 15

No breach if it was not standard practice to take practice to take those precautions (Morton v William Dixon)

Lee: does not encourage improvement of the reasonable standard

Question 16

Balancing exercise of relative factors

Answer 16

Discretion by the judge

USA: “Learned Hand” formula with mathematical probability assigned to each factor, presumes economic approach in decision making

Question 17

Special rules for professional negligence

Answer 17

‘Reasonable practice’ according to opinion of a respectable body (Bolam v Friern Hospital Management Committee)

Junior doctor same as senior doctor (Wilsher v Essex Area Health Authority)

Question 18

Type of evidence required

Answer 18

Bolitho v City and Hackney HA

a) Responsible body, not just one doctor
b) Some rational basis (not just a trend)
c) Assessments of benefits and detriment

For disclosure of risks: must disclose any “material risks”; Materiality based on the reasonable patient (Montgomery v Lanarkshire Health Board)

Question 19

Extension of special principles for disclosure of information to barristers

Answer 19

Moy v Pettman Smith