Negligence: Breach of Duty Flashcards
What is the first question to ask when seeing if there’s a breach of duty?
What is the standard of care and did D fail to meet that standard?
What is the standard of care?
The standard of care is the expectation about the level of care D should take to meet the duty of care he owes to C
How do you work out if there has been a breach of duty?
Use the Reasonable Persons Test
More specifically, we would see what the reasonable person would have done in Ds place
What is the Reasonable Persons Test?
This is an objective test- its not looking at the specific characteristics of the Defendant
The test is ultimately:
1) who is the reasonable person; and
2) what would they have done in this situation?
3) Has the standard of care been met?
D would breach their duty if:
the reasonable person would not have done what D did
Who is the reasonable person? (First element of RP test)
‘the man in the street’ or ‘the man in the Clapham omnibus’
this person is of middle ground- they are not perfect or the ideal civilian but they are the normal reasonable person
What are the characteristics of a reasonable person? (5)
1) The reasonable person has to be in the position of the defendant
2) They must only know what was available at the time
3) They will not have the specific skills and attributes of D
4) Defendant’s who are children will be judged against a reasonable child of the same age
5) They will rarely have Ds physical and mental impairments
CH1: The Reasonable Person has to be in the position of the defendant
Explain and give case examples (3)
If defendant is a motorist, then reasonable person will be a motorist. The reasonable person is not expected to be beyond the skill set of the defendant.
Condon v Basi [1985] – held to standard of reasonable footballer
Phillips v William Whiteley [1938] – ears pierced by jeweller got infected. Court said this jeweller will not be held to the standard of reasonable surgeon but of a reasonable jeweller who pierces ears.
Wilsher v Essex Health Authority [1987]- junior doctor held to standard of a general practitioner
CH2: The Reasonable Person must only know what was available at the time
Explain and give case examples (1)
The reasonable person cannot see in the future. D will be judged based on the knowledge which was or ought to have been reasonably possessed at the time. The reasonable person must disregard the result.
Key case:
Roe v Birmingham University [1954]- D gave C an anaesthetic which had been stored wrongly and had a crack in the glass, C paralysed and sued D. It was held that it wasn’t a breach because they couldn’t have known
CH3: Reasonable Person will not have skills and attributes of D
Explain and give case examples (3)
The Reasonable Person won’t have things like Ds personal attributes.
but being inexperienced doesn’t change the standard of care.
Key cases:
Nettleship v Weston [1971]- Learner Driver held to the standard of a reasonably skilled qualified driver
Bolam [1957] – here the principle is that a reasonably skilled doctor will be judged against other doctors not a reasonable person. Here they don’t see as inexperience reducing the standard of care- but the doctors are judged by the skills they claim to have
Wilsher v Essex Area Health Authority [1988]- junior doctor held to the standards of a reasonably skilled doctor in that area
CH4: Reasonable Person: Children
Explain and give case examples (1)
A child will be judged against a reasonable child of the same age. Age can vary the standard of care. For the child, the behaviour needs to be pretty careless/ fall outside the norm for that age for there to be a breach.
Mullins v Richards [1998]– kids messing with rulers, it snaps and goes in eye causing blindness. Court said no breach, D was held to standard of a reasonable 15 yo girl
CH5: Reasonable Person: Physical or Mental impairment
Explain and give case examples (2)
RP will rarely have Ds physical or mental impairments.
Roberts v Ramsbottom [1980] – D was driving and C got a stroke, D continued driving, crashed and injured C. Court held he was liable because he continued driving when he should have stopped
Mansfield v Weetabix [1997]- D drove lorry into Cs shop. He had a health condition he didn’t know about which restricted his brain from working properly. He was not liable as he didn’t know about this condition
The second question to ask is ‘what would the reasonable person have done?’
(second element of RP test)
How do we work out how the reasonable person would have behaved?
The courts will consider certain factors they find relevant and weigh them up against each other- a balancing exercise
The key factors the courts look at:
- Degree of risk (likelihood)
- Magnitude of risk (severity)
- Costs of taking precautions
- Social utility
What is Degree of Risk?
Explain and give case examples (2)
This is about how likely it is for a risk to occur. The higher the degree of foreseeable risk, the more precautions the reasonable person is expected to take.
This must be seen before the actual harm occurred- so before result
- Bolton v Stone [1951]- C lived next to a cricket field, got hit on the head and sued. HOL rejected this as club had erected a fence so any balls that came over after this was very rare. HOL said likelihood of balls coming over now was low and erecting fence was reasonable precaution.
- Miller v Jackson [1977]- cricket ball came over 6 times in one year despite erection of a fence. Cricket club held liable. Should have taken more precautions as likelihood of harm occurring was higher.
What is Magnitude of Risk? Give some examples of it (1)
This is about how severe/serious the risk is. The higher the magnitude of risk, the more precautions the reasonable person would take.
This must be seen before the actual harm occurred.
• Paris v Stepney [1951]- C worked in garage and was blind. Piece of metal flew in his other eye and became blind. The risk of this happening was low, but the potential severity of the harm was high. Employer was liable as they should have given goggles as a precaution
What is the cost of taking precautions? Give examples (1)
The lower the costs or practicality of taking precautions, the more precautions the RP would take.
So the more cheaper and easier it is to take, the more steps RP would take
• Latimer v AEC Limited [1953]- C worked in factory, factory flooded with water and oily substance, water subsided but oil remained making floor slippery. Owner was aware and used saw dust to stop it, this didn’t cover all the floor and C slipped and sued. Court said owner acted reasonably, the degree of risk of falling was low and it was unreasonable and expensive to shut the factory to clean as a precaution. C failed
