Breadh Of Duty- Chapter 3 Flashcards
Question of law for breach of duty,
What is the standard of care?
Question of fact for breach of duty
Has the defendant met the standard of duty.
Blyth v Birmingham waterworks tests for reasonable man
Objective judging the defendant on the standard of a reasonable person
Negligence is unintentional
A reasonable person would decide if harm was unforeseeable.
It is not negligence to fail to protect for a very unlikely event
Age is considered by the court for a reasonable persons characteristics. How is a child judged
By the standard of a reasonable person of the same age orchard v Lee
Bolam v friern hospital
A professional will be judged as reasonable based on what another professional would have done. “The test is the standard of the ordinary skilled man exercising and professing to have that special skill”
As long as a professional acted based on the skills taught and they relied upon that then no claim- it must be ‘logically supported’
Bolitho v city and hackney health authority
Mere fact that an expert can support the D opinions does not provide sufficient evidence their stance that they acted reasonably.
Montgomery v Lanarkshire health board
Doctors must give patients the material risk
Roe v Minister of Health
A professional person should be judged purely on the knowledge they have at the time of the accident.
Magnitude of risk
Greater the risk of an accident occurring based on the D actions, the greater care they should take. And vice Versa (Bolton v Stone)
Vulnerability of the claimant - other factor 1
Something about the claimant makes them higher risk, there will be a higher standard of care owed. Paris v Stepney
Important of the defendants objective- other factor 2
An act which is likely to cause harm may be justified if the defendant is engaged in a socially desirable activity at the time. Watt v Hertfordshire city council
The cost of avoiding the harm- Other fact 3
The lengths the D has taken to protect against risks. Latimer - too costly to close down the factory for 1 day
Two situations where defendant must prove they were not negligent
If D has been convicted of criminal offence related to the negligence
Or
If the thing speaks for itself (res ipsa loquitur)
