Negligence 2 (Breach of Duty) Flashcards
Introduction
In order to decide whether a duty of care has been breached a court will consider four factors –
-The degree of risk (the likelihood of something happening)
-The seriousness of the harm
-The practicability of taking precautions, and
-The social importance of the risky activity.
The last point is another policy issue for a court to determine.
Test for Breach
Laid down in Blyth v Birmingham Waterworks
- Omitting to do something a reasonable person would do, or doing something that an ordinary person would not do.
- What is reasonable depends on the facts of the case
- Not ‘did the D do his best’, but – ‘did D do what a reasonable person would do?
- ‘Reasonable’ is a somewhat elastic concept
Nettleship v Weston
N giving friend’s wife driving lessons. On 3rd lesson she was steering and operating pedals, N the gears and handbrake. She lost control and hit a lamppost, he was injured and sued. She alleged contributory negligence.
1st instance judge dismissed claim claiming voluntary acceptance of risk.
CoA held 1) that the fact that he checked that she was insured was evidence that risk not voluntarily accepted.
2) Duty of care owed by learner same as for experienced driver.
Balancing Burden and Risk
- Nothing in life is simple. We all make decisions everyday that balance competing factors.
- This is also true in negligence, where the magnitude of the risk has to be balance against the burden to the D of preventing the harm
- The magnitude of the risk is a product of 2 factors – the likelihood of the risk actually materialising, and the severity of the damage caused.
Magnitude 1: Likelihood
- The case that illustrates this is Bolton v Stone.
- S was stood on the road by her house when she was struck by a cricket ball. The ball had travelled 100yards from the crease and gone over a fence that was (effectively) 24 feet higher than the batsman.
- Although it might be reasonably foreseen that someone might be hit by a cricket ball, the risk of injury was too remote to found an action in negligence.
Magnitude: Likelihood 2
- Hilder v Associated Portland Cement
- APC owned land in Kent that included a grassy area next to a busy road. The grass was bounded by a wall that was one metre high. Two kids playing football on the ground kicked the ball into the road causing a motorcyclist to fall off, fracture his skull and die. Widow sued the land owners.
- Here the court held that the risk that injury may occur was reasonably foreseeable and that the risk was not so small that it could be ignored. APC had to pay damages.
Magnitude 2: severity of damage
- If the defendant is aware that the claimant suffers from some disability that increases the risk of harm, then the D has to modify his/her behaviour accordingly.
- The risk that blind people will use a shopping street is an example – see Haley v LEB
- An unknown disability that could not reasonably be known by the D can be ignored.
Severity of damage
- The more serious the consequences the more that should be done to prevent them.
- Paris v Stepney Borough Council – P invalided out of the army during the war after he lost the use of one eye. He got a job working for a Council garage. A shard of metal from a U bolt he was hitting entered his good eye leaving him totally blind. Protective equipment had not been supplied.
- On a 3:2 majority the HoL held that the increased risk of serious injury was a relevant consideration when determining liability
Social Importance
- Watt v Herts – fire brigade needed a special jack at the scene of an RTA, but the special tender not available, so jack loaded on to ordinary lorry which lacked means to tie it down. Watt and other firemen detailed to hold it in place. Watt injured when lorry braked.
- D not liable as being a fireman involved taking risks and this was within acceptable levels.
Practicability of precautions
- Have to balance the cost of taking precautions against the risk of injury
- Latimer v AEC – heavy rainfall flooded AEC’s factory. D spread sawdust to absorb water, but ran out. L slipped on wet floor. Argument advanced that factory should have been shut dismissed as impractical. L was the only employee to have slipped on a wet floor.
- NB – a lack of resources will not justify failure to take preventative measures (ex LAs)
Special standards
- All ordinary people – the users of the Clapham Omnibus – will be presumed capable of the same standard as each other.
- But, where a person has special skills, the standard that will apply is that of the ordinarily competent possessor of those skills – a standard higher than ordinary people
Experts
- In determining what a reasonable person would do/not do, the courts measure children against children, adults against adults and learner drivers against experienced drivers.
- What about experts?
- Experts are measured against others with the equivalent level of qualifications.
Wilsher v Essex AHA (Experts Example)
Babies born early may suffer blindness as a result of being premature. Excess oxygen also causes blindness. One issue was the problem of deciding whether it was the fact of being premature or the excess oxygen the baby was given due to defective machinery.
This case also decided that the standard of care required of a doctor would depend on the post the doctor held, but that a newly promoted doctor would be required to meet the same standard as an experienced post-holder.
Res ipsa loquitar
Means - ‘the thing speaks for itself’
- As an exception to the general rule that the person making an assertion has to prove it, r.i.l. means either that the defendant has to show that s/he was not negligent, or -
- where there is no way of knowing what actually happened, but generally injury of the type in the case is not sustained unless someone had been negligent, the C does not have to prove actual negligence by the defendant
Res ipsa - proof elements
- The accident must be of the kind that does not normally happen in the absence of negligence
- The cause of the accident must have been under the defendant’s control
- There must be no explanation of the cause of the accident
