C2B: Breach of Duty Flashcards
What did Blyth v Birmingham Waterworks Co [1856] decide about breach of duty?
Blyth v Birmingham Waterworks Co [1856] - water escaped from a mains pipe during an unusually severe winter, due to an accumulation of ice around a plug in the pipe. The pipe had been in place for 25 years without incident. A large accumulation of ice was visible on the ground for some time before the escaped water leaked into the claimant’s house.
On appeal, it was held that the company had not been negligent. Owing to the extreme severity of the frost of 1856, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions, this circumstance constituted a contingency against which no reasonable man could provide. The result was an accident, for which the defendants were held not liable.
What is the test for establishing the standard of care?
Defendants must act according to the standard of a reasonable person.
What are 8 factors a court will take into account when determining the standard of care required in any given situation?
Who is the reasonable person?
- Age (taken account of)
- Characteristic (usually not taken account of)
- Increased skill (doctors etc)
a) Lower skill is not taken into account (i.e. learner driver, junior doctor)
How would the reasonable person decide what to do?
- Reasonable foreseeability (can’t judge people using hindsight)
Factors taken into account to find the reasonable standard of care.
- Magnitude of risk test (low/high risk)
- Vulnerability (reasonable person takes more care for person with only one eye, or cyclists)
- Cost of precautions (reasonable person would spend if the cost of avoiding the accident was low)
- Defendant’s objective (socially desirable activity?)
How will AGE affect a court’s decision regarding the standard of care? (2 cases, Playground, rulers)
Age: Will be taken into account and courts will judge them according to the standard of a reasonable person of the same age. Orchard v Lee [2009] (boy bumping into teacher in playground) and Mullin v Richards [1998] (15 year old girls fencing with rulers, blinded).
Their conduct had been normal and typical for their ages. A reasonable person of their age would not have anticipated that there was a probability that their actions would cause such harm.
How will CHARACTERISTICS affect a court’s decision regarding the standard of care? (1 case, mental health)
Characteristics: Not taken into account, i.e. mental illness, in Dunnage v Randall and Another [2015], where the mental incapacity was ignored and he was judged against a reasonable person.
How will INCREASED LEVEL OF SKILL affect a court’s decision regarding the standard of care? (2 cases Bolam + Bolitho)
Increased level of skill: E.g. doctors. The courts will judge a professional acting in their professional capacity at the standard of the reasonably competent professional carrying out that particular task.
Bolam [1957] (medical opinion divided on treatment, two conflicting bodies of professional opinion, acted in accordance with the views of one accepted body)
Bolitho [1997] (evidence from other practitioners must be logical and defensible).
How will REASONABLE FORESEEABILITY affect a court’s decision regarding the standard of care? (1 case, anaesthetic)
Reasonable foreseeability:
The standard for a professional person should be judged purely in light of the knowledge available at the time of the accident, see Roe v Minister of Health [1954] (anaesthetic, not known at time, can’t judge using hindsight)
How will the MAGNITUDE OF RISK TEST affect a court’s decision regarding the standard of care? (1 case, cricket ball)
‘Magnitude of risk’ test: The greater the chance of an accident arising from what the defendant is doing, the greater the care they should take; the smaller the chance, the less obligation there is to guard against it.
Bolton v Stone (cricket, outside stadium, very risk of a ball being hit outside the ground was so small that it was not negligent to fail to guard against it.) [1951]
How will VULNERABILITY affect a court’s decision regarding the standard of care? (2 cases, blindness, boxing)
Vulnerability: If there is something about the claimant that makes them particularly likely to be harmed, the standard of care is higher, see Paris v Stepney Borough Council [1951] (one-eye, heightened risk if lost all sight)
Watson v British Boxing Board [2010] (boxers, should have better medical provision, injuries are common)
How will COST OF PRECAUTIONS affect a court’s decision regarding the standard of care? (2 cases, sawdust, skiing)
Cost of precautions: The lengths to which a potential defendant must go to protect against a risk.
If the risk is small, the wrongdoing is under no obligation to take extra precautions.
Latimer v AEC [1953] Latimer v AEC [1953] (warning signs, spread sawdust on the floor, although the defendant could have completely avoided the risk by closing the factory down for the day, it was not required to take such a costly measure).
Chittock v Woodbridge School [2002] (skiing boy, messing around, didn’t take him off due to staff shortage)
How will the DEFENDANT’S OBJECTIVE affect a court’s decision regarding the standard of care? (1 case, fireman)
Defendant’s objective: If the defendant is engaging in a socially desirable activity at the time. Courts balance the potential harm of the defendant’s action against the potential benefit of the activity they are engaged in at the time.
Watt v Hertfordshire County Council [1954] (firefighter, injury due to trying to save a life.
How will a professional person be judged when it comes to the standard of care?
A professional person will not be in breach of the standard expected of them if they show that they acted as other reasonably competent professionals would have acted in the same situation.
If there are two conflicting bodies of professional opinion, a professional defendant will not be liable if they showed that they acted in accordance with the views of one accepted body of professional opinion.
Will a doctor be negligent if they made a mistake?
A doctor will not be liable for negligence unless the doctor’s standard of care did not fall below that of a reasonable doctor in the circumstances - the mistake must be within the realms of those that could have been made by a reasonably competent doctor carrying out that task. Would be a one-off error of judgement and not negligence.
If an expert can be found to support a defendant doctor’s opinion, will this be sufficient evidence to support their claim of not being negligent?
Expert evidence indicating the prevailing standard of professional skill must be logically supported.
The mere fact that an expert can be found to support the defendant’s opinion may not be sufficient evidence to support his contention that they acted as a reasonable doctor would have done. According to the House of Lords, the judgement of the reasonable practitioner must be logical – that is, rational and consistent.
What is expected when explaining the risks of that treatment to patients?
In Chester v Afshar [2004], the House of Lords held that a surgeon’s duty of care requires that a patient be warned where any “small (1–2 per cent) but unavoidable risk that the proposed operation, however expertly performed, might lead to a seriously adverse result”
This means that the standard of care from professionals (Bolan) applies to diagnosis as well as to treatment.
The court said that patients should always (with few exceptions) be informed of material risks and that “material” meant those risks that would be important to that patient.
Thanks to Montgomery v Lanarkshire Health Board [2015], the default position must now be to give patients self-determination, that is, the opportunity to give informed consent.
