Breach of Duty (Negligence)

Question 1

What two parts is breach of duty made up of?

Answer 1

• Comparing D’s conduct with the standard of care expected from a reasonable person
• Considering risk factors which may raise/lower the standard

Question 2

What is the reasonable person test?

Answer 2

• D breaches their duty of care if they fail to act in a way which a reasonable person would have/acts in a way a reasonable person wouldn’t have
• Blyth v Birmingham Waterworks 1856

Question 3

What was the case of Nettleship v Weston? (RPT)

Answer 3

• 1971
• Learner driver crashed on her 3rd lesson, injuring her instructor
• Judged against standard of a reasonably competent driver, no allowances for her inexperience

Question 4

What are the circumstances where D’s characteristics would be relevant? (RPT)

Answer 4

• Children judged against reasonable child of the same age (Mullins v Richards 1998)
• Amateurs judged against other reasonably skilled amateurs doing the same task (Wells v Cooper 1958)
• Professionals/experts judged against competent experts in the same field (Bolam v Barnet Hospital 1957)

Question 5

What are the 5 risk factors?

Answer 5

• Probability of harm
• Seriousness of harm
• Cost and practicality of taking precautions
• Potential benefits (social utility)
• Unknown risks

Question 6

Probability of harm (RF)

Answer 6

• Probability of harm low: D not expected to take as much care to guard against the risk
• Probability of harm high: higher standard of care expected

Question 7

What was the case of Bolton v Stone? (RF)

Answer 7

• Likelihood of cricket ball being hit out of the ground and injuring a passer by was very low
• No breach of duty as club had already taken the reasonable precautions

Question 8

Seriousness of potential harm (RF)

Answer 8

If potential harm could be serious (e.g if C is especially vulnerable) standard of care must be raised

Question 9

What was the case of Paris v Stepney? (RF)

Answer 9

• 1951
• Welder had already lost sight in one eye
• Employer under a higher duty to provide protective goggles as the risk of him becoming completely blind was greater than other employees

Question 10

Cost and practicality of taking precautions (RF)

Answer 10

Court will balance seize of the risk with cost/effort to the D in guarding against it

Question 11

What was the case of Latimer v AEC Ltd? (RF)

Answer 11

• 1953
• C injured when slipped on a wet floor
• D took sensible precautions by laying sawdust to reduce effects of flooding
• Closing the factory would be disproportionate to the level of risk

Question 12

Potential benefits (RF)

Answer 12

Standard of care lower if there is a greater public benefit to the activity e.g in an emergency

Question 13

What was the case of Day v High Performance Sports? (RF)

Answer 13

• 2003
• C fell when being rescued from an indoor climbing wall and became injured
• The benefit (rescuing the climber) outweighed any potential risk so standard of care was lower

Question 14

Unknown risks (RF)

Answer 14

If risk of harm is not known, there can be no breach of duty

Question 15

What was the case of Roe v Minister of Health? (RF)

Answer 15

• 1954
• C paralysed by infected anaesthetic
• Unknown to medical professionals at the time that contamination could occur in that way, so no breach

Question 16

What was the case of Haley v LEB? (RF)

Answer 16

• 1965
• Blind man fell down an open man hole: high probability of harm so workers should have done more to guard people against the risk