Breach of duty - breach

Question 1

What are the factors relevant to breach?

Answer 1

• Usual or common practice
• likelihood of harm
• magnitude of harm
• practicality of precautions
• benefit of D’s conduct
• Sport
• ‘State of art’ defence
• Breach of errors of judgement

Question 2

Explain the ‘Usual or common practice’ factor.

Answer 2

• If a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument = in the defendant’s favour,
• However, the court can always rule that the common practice is itself negligent (Re Herald of Free Enterprise)
• The less expertise / judgment / specialist knowledge involved in a particular area, the less weight the court will give to ‘common practice’ as a consideration compared to the others

Question 3

Explain the ‘likelihood of harm’ factor.

Answer 3

• The more likely someone is to get injured, the more likely it is that there will be a breach. A defendant does not have to guard against very minor risks of injury. (Bolton v Stone)
• The defendant must tailor his conduct in light of the characteristics of people who he knows might be affected by his actions. (Haley v London Electricity Board)

Question 4

Explain the ‘magnitude of harm’ factor. (seriousness of injury)

Answer 4

• If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury. (Paris v Stepney Borough Council)
  (Watson v British Boxing Board of Control Ltd)

Question 5

Explain the ‘practicality of precautions’ factor.

Answer 5

• judge how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk.
• To satisfy the duty of care, a defendant need only act reasonably.
• If it would be unreasonable to require them to take the necessary precautions, even against a clearly foreseeable risk, the court will accordingly not impose liability.
  (Latimer v AEC Ltd)

Question 6

Explain the ‘Utility or potential benefit of the defendant’s conduct’ factor.

Answer 6

• If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may be justified.
• The potential benefits to safety are weighed against any possible damage that may result if the risk is taken.
  (Watt v Hertfordshire County Council)
• Where human life is at stake, the defendant may be justified in taking abnormal risks.

Question 7

What is the Compensation Act 2006?

Answer 7

Compensation Act 2006 s 1 allows courts to consider the deterrent effect of potential liability on socially desirable activities

Question 8

What is the Social Action, Responsibility and Heroism Act 2015?

Answer 8

This act requires the court to take into account whether the person was acting for the benefit of society, or the person demonstrated a responsible approach towards protecting the safety others.
- were they acting heroically by intervening in an emergency to assist an individual in danger.

Question 9

Explain the ‘Sport’ factor.

Answer 9

• When the defendant is participating in a sporting event, the demands of the game will be foremost in his mind and he is likely to take risks in the heat of the moment.
  Nothing short of reckless disregard for the claimant’s safety would constitute a breach. ((Wooldridge v Sumner)
  Although in this case it was a spectator, rather than another participant, that was injured.
• InWatson v Gray, it was held that there would be a breach of duty if the reasonable participant (of the defendant’s level) would have known that there was a significant risk that what he did could result in serious injury.
• Even where the game being played is horseplay, there may be no breach of duty in respect of any injury caused to the claimant, provided that the defendant’s conduct does not amount to recklessness or a very high degree of carelessness (Blake v Galloway)

Question 10

Explain the ‘State of art’ defence’ factor.

Answer 10

• The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach
• Unforeseeable risks can obviously not be anticipated and, therefore, failing to guard against them will not be regarded as negligence.
  (Roe v Minister Of Health)

Question 11

Explain the ‘Breach distinguished from errors of judgment’ factor.

Answer 11

• depends on the nature of error whether an error of judgment is negligent
  (Whitehouse v Jordan)

Question 12

Who has the burden to prove that there has been a breach?

Answer 12

• The burden is on the claimant to prove that the defendant breached the duty of care.
• on the balance of probabilities.

Question 13

How can s11 Civil Evidence Act 1968 help the claimant?

Answer 13

• If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results.