Negligence: Breach of Duty

Question 1

What happens once a DOC is established?

Answer 1

The claimant must prove the defendant has broken the duty

Question 2

What test is breach of duty?

Answer 2

Objective test

Question 3

What is the breach of duty judged to?

Answer 3

The standard of the ordinary and reasonable person performing the task
Vaughen v Menlove

Question 4

What are the three specific categories the courts can use to decide whether there’s a breach of duty?

Answer 4

Professional
Learners
Children

Question 5

What are professional judged to?

Answer 5

Profession as a whole
Bolam v Friern Barnet HMC

Question 6

What are the two points needed to proven for professional BOD?

Answer 6

If D’s conduct has fallen below the standard of the ordinary and competent member of that profession
If there is a substantial body of opinion within that profession that wouldn’t support the course of action taken by the D

Question 7

What is the case for professional BOD?

Answer 7

Montgomery v Lanarkshire Health Board

Question 8

What happened in Montgomery v Lanarkshire Health Board?

Answer 8

Doctors are under duty to disclose anything serious during childbirth, doctor didn’t so was negligent

Question 9

1 - Following Bolam, what is it fair to do?

Answer 9

Judge the D against what is common practice and the knowledge of the time especially in medical or scientific areas where developments and changes in practice can happen quickly

Question 10

1 - Following Montgomery, what happens if the risk manifests?

Answer 10

It doesn’t mean that doctors can’t be liable, if the doctor’s actions were negligent and that is the reason why the risk was brought about, will be liable
Ensures C is still protected, upholds public policy

Question 11

1 - What did the decision in Montgomery do?

Answer 11

Signifcantly changed the way in which doctors are tried
It’s unsure if the courts were trying to create new law or clarify the law on childbirth

Question 12

What are learners judged to?

Answer 12

The standard of the competent and more experienced person

Question 13

What happened in Nettleship v Weston?

Answer 13

Learner drive is expected to mee the same standard as a reasonable qualied competent driver

Question 14

2 - What does Nettleship v Weston encourage?

Answer 14

A greater standard of care when driving, even when learning
One standard test that is easy to apply, everyone finishes learning at different stages, fair we’re all held to the same standard

Question 15

2 - What will the defendant never be out of?

Answer 15

Pocket if it’s a learner driver situation as the defendant will be covered by insurance so the claimant will be compensated

Question 16

2 - However, what will it deter?

Answer 16

People from learning to drive due to fear of being sued

Question 17

What are children and young people judged to?

Answer 17

The standard of the reasonable person of the defendant’s same age at the time the incident occured

Question 18

What case established the children and young people standard?

Answer 18

Mullin v Richards

Question 19

What happened in Orchard v Lee?

Answer 19

Kid bumping into teacher was merely horseplay

Question 20

What are the risk factors for breach of duty?

Answer 20

Special characteristics
Size of risk
Appropriate precautions
Risks known at time
Benefit

Question 21

What happened in Paris v Stepney Borough Council?

Answer 21

Was a breach of duty, duty is owed to the particular claimant not a classs of persons of reasonable workers

Question 22

What happens if there is a small risk?

Answer 22

The defendant won’t be expected to take as great a precaution as seen in Bolton v Stone

Question 23

What happens if the risk is high?

Answer 23

A greater duty of care is required as seen in Haley v London Electricity Board

Question 24

What happened in Latimer v AEC Ltd?

Answer 24

No breach of duty, defendant only had to take reasonable precautions to minimise risk

Question 25

3 - When was Latimer?

Answer 25

19523, decision may be different to one decided today
Today there ate trade unions and health and safety regulations
No clear criteria for when workers should shut the workplace

Question 26

What happens if the risk of harm isn’t known?

Answer 26

No breach

Question 27

What happened in Roe v Minister of Health?

Answer 27

No BOD, risk was not foreseeable as it was unknown risk at the time

Question 28

What happens in emergencies?

Answer 28

Greater risks can be taken and a lower standard of care is acceptable
Will still be considered if DOC was fair, just and reasonable

Question 29

What happened in Watt v Hertfordshire County Council?

Answer 29

Was an emergency, no breach
D’s conduct was to save a life, outweighing the need to take precautions

Question 30

What happened in Day v High Performance Sports?

Answer 30

Error was one of judgement and not negligence, in cases of emergencies, it should be excused