Breach of Duty

Question 1

Which case introduced the reasonable man?

Answer 1

Blythe v Birmingham Waterworks

Question 2

The reasonable man test is….Objective or Subjective?

Answer 2

Objective

Question 3

Which case tells us there is no reduction in the standard of care for learners of the inexperienced?

Answer 3

Nettleship v Weston

Question 4

Child must display the same standard of care as adults

Answer 4

False

Question 5

Do we have the standard of the reasonable doctor?

Answer 5

No

Question 6

Where do we find the required standard for medical professionals?

Answer 6

Bolam v Friern Hospital Management Committee

Question 7

Was there liability in Roe v Minister of Health?

Answer 7

A hospital kept anaesthetic in glass ampules stored in saline for hygiene reasons, this was common practice at the time. When the anaesthetic was used during an operation it led to the permanent paralysis of a patient as the saline had seeped into the anaesthetic due to tiny cracks in the glass ampules that could not be seen by the naked eye.

Outcome: Not liable

Question 8

Which factor for determining breach is illustrated by Latimer v AEC?

Magnitude of harm
Practicality of precautions
Foreseeability of harm
Extent of the likely damage

Answer 8

Practicality of precautions

It was held that the defendants had not been negligent and they had taken all reasonable precautions that could have taken to minimise any possibility of risk to their employees. Thus, there was no breach of their duty of care and it was not reasonable to shut down the entire factory.

Question 9

Will all 6 factors be considered in every case?

Answer 9

No however the following 3 will:

The vulnerability of the claimant

If there is something about the claimant that makes them particularly likely to be harmed, the standard of care is higher.

Paris v Stepney Borough Council [1951] It was held his employer failed to provide goggles to a one-eyed man.

The importance of the defendant’s objective when the tort occurred

An act which is likely to cause harm may be justified by the fact that the defendant is engaged in a socially desirable activity at the time.

Watt v Hertfordshire County Council [1954]
A firefighter was injured when the lorry braked and the jack fell on him. Although a duty of care was owed, the defendants were entitled to act as they had done for the purpose of saving a life.

The cost of avoiding the harm.
The cost of avoiding harm is a term encompassing the lengths to which a potential defendant must go to protect against a risk.

Question 10

What are the characteristics of a reasonable man

Answer 10

1. A person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances to avoid liability;
2. It is an objective standard. No consideration is given to the defendant’s thought process or personal awareness of danger. Individual characteristics are excluded such as intelligence, strength, maturity, or temperament;
3. It is not a standard that requires perfection or removal of every possible danger – it is a standard that requires reasonableness; and
4. Everyone is held up to the reasonable person standard, including the victim.

Question 11

What might be the policy reasons behind the decision in Nettleship v Weston?

Answer 11

The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk. However, it was held that a learner driver is expected to meet the same standard. The decision was influenced by policy considerations such as the cost of a car accident is borne by an insurance company and it is therefore fair to pose liability on all car drivers, regardless of experience.

Question 12

what does volenti non fit injuria mean

Answer 12

Volenti is sometimes described as the plaintiff “consenting to run a risk”.

Question 13

How was the standard of care determined in Roberts V Ramsbottom

Answer 13

The defendant was driving in his car when he suddenly suffered a stroke. The defendant knew he did not feel well. He also had some awareness of what was happening. The High Court held in favour of the claimant. The defendant had not completely lost control of his actions, which fell below the objective standard of care imposed on drivers. It did not matter that the defendant did not appreciate the significance of his symptoms (being unaware he was having a stroke) The standard of care imposed in negligence is objective. Where the defendant’s illness or infirmity causes of his behaviour, he will still be negligent.

Question 14

Why was the outcome different in Mansfield v Weetabix

Answer 14

Roberts V Ramsbottom is conflicting with the decision in Mansfield v Weetabix where the defendant was held to the standard of a sick person. The Court of Appeal in Mansfield disapproved of, but did not overrule, Ramsbottom.

The Court of Appeal in Mansfield argued that the defendant in Mansfield had no reason to believe he was sick and lost the ability to appreciate that he was out of control once he became hypoglycaemic. In Roberts, the defendant already had warning signs that someone was wrong before he hit the claimant and was aware that he did not feel well. Therefore, he should have stopped driving at that point.

Question 15

What is the measure or standard of the duty of an industrial employer in connection with advances in protective measures against hearing damage caused by excessive noise in the workplace

Answer 15

An industrial employer must be legally competent. In other words, he or she should be an adult with the ability to understand Health and Safety Issues. When it comes to duty of care, the primary job of the competent person is to conduct a Risk Assessment. This must identify the health and safety risks each employee faces at work. A duty of care is legally binding on an employer. An employer must abide by what the law refers to as a standard of reasonable care. The standard of reasonable care applies to a work-related matter that could injure someone. This is why a risk assessment to identify such issues is vital. An employer may neglect this duty of care. If so, and if a problem arises, an affected employee may be able to proceed with a claim of Negligence. If one of the problems are ‘excessive noise’, this should have been filed in the risk assessment to determine a sensible solution to the problem to prevent any risk or harm.

Question 16

Standard of care for a junior doctor?

Answer 16

Bolam v Friern Hospital Management Committee [1957]
The claimant was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug.

Held:
The doctor was not in breach of duty. The House of Lords formulated the Bolam test:
“a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”

The Standard of Care that a doctor has to show, as set out in Bolam is as follows:-

a) the standard of care required of a doctor is that of the ordinarily skilled doctor exercising and professing to have that skill. He need not possess the highest expert skill; it is sufficient if he exercises the ordinary skill of an ordinary competent doctor exercising that particular field; and
b) a doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique

Question 17

Standard of Care for a rescuer?

i.e a pot-holer who performs emergency throat surgery sixty miles from the nearest human habitation;

Answer 17

Social Action, Responsibility and Heroism Act 2015 would apply if the pot-holer could demonstrate a responsible approach towards protecting the person who required emergency throat surgery and whether they were acting heroically by intervening in an emergency to assist an individual in danger.

Question 18

6. What criticisms can be made of the test used for establishing the standard of care owed by professionals?

Answer 18

Standard of care for a professional person must achieve a higher standard than a reasonable person without special skill, and will have a defence if they have acted in accordance with the views of an accepted body of professional opinion provided that the opinion was rational and consistent. However the Bolam test has received much criticism because it is not objective and leaves far too much power to doctors to determine the outcome

Question 19

Which case help develop the bolam test to make the outcome more reasonable?

Answer 19

Bolitho v City & Hackney Health Authority (1997) 4 All ER 771 reviewed the Bolam Test and The House of Lords clarified the Bolam test to include a proviso that the practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds.

Question 20

Explain the standard of care for a reasonable man is?

Answer 20

The general standard of care for a reasonable person does not allow for defendant’s lack of experience, but children are judge against reasonable children of the same age. The person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances to avoid liability. It is an objective standard. No consideration is given to the defendant’s thought process or personal awareness of danger. Individual characteristics are excluded such as intelligence, strength, maturity, or temperament.

Question 21

What requirements must be satisfied for the maxim ‘res ipsa loquitur’ to apply?

Answer 21

For res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant’s negligence caused the harm in question:

• The event does not normally occur unless someone has acted negligently;
• The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and
• The type of negligence in question falls with the scope of the defendant’s duty to the plaintiff.

Question 22

What does res ispa loquitur mean?

Answer 22

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”

The burden of proof then shifts to the defendant, who must prove that the accident was not caused by their negligence. Where the defendant cannot discharge that burden, a claimant may succeed in their claim without proving precisely how their injury was caused.