Breach of the Duty of Care Flashcards
Where is the test for determining whether a defendant has breached their duty of care laid down?
Blyth v Birmingham Waterworks Co
What is the objective standard regarding learner drivers and what was the case?
Nettleship v Weston
He maybe doing his best however it is not good enough, morally the driver is not at fault however legally they are liable because she is insured and the risk should fall on her
What was the objective standard in Mansfield v Weetabix?
The driver was not liable for the damage for his loss of control due to he did not know about his illness neither could he have reasonably known
What is the objective standard regarding junior doctors and what is the supporting case?
Wilsher v Essex AHA
An inexperienced doctor must achieve the standard of a reasonably competent doctor
What is the objective standard regarding a homeowner doing work and what is the case?
Wells v Cooper
The householder must conform to the standards of a reasonably competent carpenter
What is negligence?
Falling below the standard of care called for by the circumstances
What case represents an incident where reasonable care has been demonstrated in a vehicle situation?
Ng Chun Pui v Lee Chuen Tat
The driver who swerved and skidded when another car cut in front of him was seen to be acting reasonably
What is the critical issue when discussing reasonable care?
It must be considered what the reasonable man would have foreseen
What is the case regarding reasonable foreseeability in a medical situation?
Roe v Minister of Health
Medicine had invisible cracks in and led to patients being paralysed. The doctors were not held liable as they were not to know that the medicine was infected
What are the relevant factors for breach of a duty of care?
- Magnitude of risk
- The importance of the object to be obtained by D
- Practicability of precautions
What are the two components to the magnitude of risk?
Likelihood of harm and Seriousness of Injury
What is likelihood of harm and what is the supporting case?
Bolton v Stone
What is the negligence equation?
Duty of care + Breach of duty + Causation of damage = Successful action in negligence
What are the 2 stages for establishing breach?
What was the appropriate standard of care?
Did the defendant reach the standard?
What is the said to be the standard of care in negligence and what case founded it?
‘reasonable man’ - an objective approach
Blyth v Birmingham Waterworks
What happened in the case of Glasgow Corp v Muir?
It was to be stressed what the reasonable person would do in the circumstances. Here a reasonable person would not have foreseen the accident which meant there was no breach and the defendant was not liable in negligence.
What was held in the case of Nettleship v Weston?
The expectation of a learner driver was that of an experienced, skilled and careful driver. She breached a standard of care and damages were awarded - (however they were reduced by 50% due to the instructors contributory negligence)
What happened in the case of Cook v Cook?
It was held a duty of care was varied by the relationship between the learner driver and the instructor. If the injury was to another road user then Nettleship would apply however if they have a relationship the standard of care is lower.
What was held in the case of Paris v Stepney BC?
The employee already had a medical condition and it was seen there was a higher expectation for the employer to provide protective equipment
What are the exceptions to the objective standards?
Children and Illness
What is the case regarding the objective standard of children and what was held?
Mullin v Richards
The standard was applied of a reasonable child of that age. There was no breach in this case
What are the cases regarding the objective standard of illness?
Roberts v Ramsbottom and Mansfield v Weetabix
What was held Roberts v Ramsbottom?
The defendant breached his duty of care as her drove even though he knew he had the early signs of a stroke
What was held in Mansfield v Weetabix?
He bore no liability as he unknowingly slipped into a coma
What is the objective standard when regarding a skill?
When the defendant is performing a task which requires a level of skill, the standard will vary according to the context.
What was held in the case of Phillips v William Whiteley?
A jeweller piercing ears in a department store was not expected to reach the medical standard of cleanliness
What was held in the case of Wells v Cooper?
Someone performing ‘DIY’ at home does not need to reach the standard of a professional carpenter but only the reasonable competent domestic handyman
What case shows the objective standard required when combining a professional skill and experience and what was held?
The standard of care expected of a doctor was the appropriate to the post held (e.g. junior doctor) however their experience would not be taken into account.
What test must be considered when discussing breach of duty by doctors and other professionals?
Bolam Test
What situations would a special standard be granted for objective standards?
Sports
Professional Skills
What is the case of Woolridge v Summer?
The duty of a rider to a spectator at a horse show had not been breached because he had not shown reckless disregard for safety
What was held in Vowles v Evans?
CoA held thar a higher standard of care would be expected from a professional rugby referee than from an amateur
What was held in the case of Bolam v Friern Management Committee?
“the test is the standard of the ordinary skilled man exercising and professing to have that special skill|”
‘A doctor is not guilty of negligence if he has acted in accordance with a practise accepted as proper by a responsible body of medical men skilled in that particular art.’
What was held in Sideway v Board of Governors of Bethlem Royal Hospital?
The Bolam standard was applied to the medical duty to inform patients of risks
What are the 2 aspects to be considered when deciding what the reasonable person would have done?
The magnitude of the risk
The importance of the activity undertaken by the defendant
What was held in Bolton v Stone?
The defendants playing cricket was seen to be reasonable and therefore not negligent. They had reached the standard of the reasonable person and could not foresee someone would be hit with the cricket ball
What was held in Wagon Mound No2
There had been a small but real risk of fire and there had been no real good reason to release the oil. The defendant failed to meet the standards of a reasonable person.
What is said in s1 of The Compensation Act 2006?
Court, in considering the standard of care in negligence, should have regard to the extent to which the imposition of safety requirements could impact upon ‘desirable activities’
Who is the burden of proof on to establish there has been a breach?
Claimant
What is the standard of proof when establishing there has been a breach?
Civil - the balance of probabilities
Can a criminal conviction be used to provide evidence the defendant has been negligent?
Yes, s11 of the Civil Evidence Act 1968
What does ‘res ipsa loquitur’ mean?
The thing speaks for itself
What three elements must be present to apply res ipsa loquitur?
- The accident must be of the kind which does not normally happen in the absence of negligence
- The cause of the accident must be under the defendants control
- There must be no explanation of the cause of the accident
What case supports that the event would not have happened in the absence of negligence and what was held?
Scott v London and St Katherine’s Dock Co
Where the plaintiff was hit by some bags of sugar which fell out of the window of a warehouse onto his head
What happened in the case of Gee v Metropolitan Railway Co?
The door of a train flew open after leaving the train station causing the plaintiff to fall out. The doors were under the train company’s responsibility at the time so they were liable
What happened in the case of Easson v London & North Eastern Railway?
The court held there were several opportunities to tamper with the doors so the ‘control’ condition was not met
What was held in the case of Barkway v South Wales Transport Co Ltd?
Passenger on bus was injured when it crashed. It was said the cause of the crash was a burst tyre and would not have happened had the defendant conducted a proper tyre inspection
What is the effect of imposing res ipsa and what case supports it?
Ng Chun Pui v Lee Cruen Tat
The legal burden of proof remains with the plaintiff if the defendant raises a plausible explanation for the accident which gives an innocent cause then the claimant will lose the case
