Negligence: Breach of Duty Flashcards
What happens once a DOC is established?
The claimant must prove the defendant has broken the duty
What test is breach of duty?
Objective test
What is the breach of duty judged to?
The standard of the ordinary and reasonable person performing the task
Vaughen v Menlove
What are the three specific categories the courts can use to decide whether there’s a breach of duty?
Professional
Learners
Children
What are professional judged to?
Profession as a whole
Bolam v Friern Barnet HMC
What are the two points needed to proven for professional BOD?
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
What is the case for professional BOD?
Montgomery v Lanarkshire Health Board
What happened in Montgomery v Lanarkshire Health Board?
Doctors are under duty to disclose anything serious during childbirth, doctor didn’t so was negligent
1 - Following Bolam, what is it fair to do?
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
1 - Following Montgomery, what happens if the risk manifests?
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
1 - What did the decision in Montgomery do?
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
What are learners judged to?
The standard of the competent and more experienced person
What happened in Nettleship v Weston?
Learner drive is expected to mee the same standard as a reasonable qualied competent driver
2 - What does Nettleship v Weston encourage?
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
2 - What will the defendant never be out of?
Pocket if it’s a learner driver situation as the defendant will be covered by insurance so the claimant will be compensated
2 - However, what will it deter?
People from learning to drive due to fear of being sued
What are children and young people judged to?
The standard of the reasonable person of the defendant’s same age at the time the incident occured
What case established the children and young people standard?
Mullin v Richards
What happened in Orchard v Lee?
Kid bumping into teacher was merely horseplay
What are the risk factors for breach of duty?
Special characteristics
Size of risk
Appropriate precautions
Risks known at time
Benefit
What happened in Paris v Stepney Borough Council?
Was a breach of duty, duty is owed to the particular claimant not a classs of persons of reasonable workers
What happens if there is a small risk?
The defendant won’t be expected to take as great a precaution as seen in Bolton v Stone
What happens if the risk is high?
A greater duty of care is required as seen in Haley v London Electricity Board
What happened in Latimer v AEC Ltd?
No breach of duty, defendant only had to take reasonable precautions to minimise risk
3 - When was Latimer?
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
What happens if the risk of harm isn’t known?
No breach
What happened in Roe v Minister of Health?
No BOD, risk was not foreseeable as it was unknown risk at the time
What happens in emergencies?
Greater risks can be taken and a lower standard of care is acceptable
Will still be considered if DOC was fair, just and reasonable
What happened in Watt v Hertfordshire County Council?
Was an emergency, no breach
D’s conduct was to save a life, outweighing the need to take precautions
What happened in Day v High Performance Sports?
Error was one of judgement and not negligence, in cases of emergencies, it should be excused
