Negligence : Breach of Duty Flashcards
Give the two stage test a court will apply when determining whether there is a breach of duty.
1) Court assesses how D ought to have behaved under the circumstances ie what standard of care D should have exercised (this is a question of law);
2) Court then decides whether D’s conduct fell below the required standard (this is a question of fact).
Explain the reasonable person test.
When determining the standard of care, D’s conduct will usually be measured against that of the reasonable person in the same situation.
where D was under a special duty, they will be assessed at the standard of a reasonable person in that profession (eg a doctor judged at the standard of a reasonable doctor rather than a reasonable ordinary person). This is referred to as the Bolam test.
Explain the Bolam test.
Where D was under a special duty, they will be assessed at the standard of a reasonable person in that profession (eg a doctor judged at the standard of a reasonable doctor rather than a reasonable ordinary person).
The other principle of the Bolam test is that D’s actions must be supported by a reasonable body of professional opinion, and if it is, they should not be found in breach of their duty. However ultimately this is a judgment for the court to make on the facts of each case.
Explain the standard which applies to learners/ unskilled defendants.
Inexperienced people undertaking a role will be judged at the standard of a reasonably competent person in that field. Eg a learner driver will be judged at the standard of a competent driver, and a jnr doctor at the standard of a doctor.
Note that where someone in an inexperienced position (eg jnr doctor) feels out of their depth, it is expected they will ask for further help and follow this advice. Thus if a jnr doctor asks for help with something from a senior doctor and they follow that advice, any breach would be the fault of the senior doctor given the jnr has followed their instructions (and it would be reasonable to expect others in that position would do the same).
Explain the standard of care for children.
Children will be judged at the standard of a reasonable child of that age (and not against the standard of a reasonable adult).
Give the two general factors which the court may weigh up when determining whether D has fallen below a reasonable standard of care.
1) the risk created by D’s activities;
2) the precautions which D ought to have reasonably taken in response to that risk.
List the specific factors courts use as guidelines to determine whether or not D is at fault in relation to a potential breach of their duty.
- Magnitude of risk;
- Cost and practicality of precautions;
- D’s purpose
- Common practice
- Current state of knowledge
Explain magnitude of risk and why the courts consider this.
Involves the consideration of two key points:
1) How likely was it D’s actions could cause injury?
- Effectively, the greater the chances of injury to a claimant are the more precautions D should be expected to take.
- It is justifiable not to take steps to limit the risk of injury should that risk be small, but this will always be weighed up against the purpose of the actions ad the costs of the precautions.
2) If injury was caused, how serious was it likely to be?
- The more serious the possible harm to a claimant the more care D must take.
Explain the cost and practicability of precautions factor and why the courts consider this.
To determine if D did all that a reasonable person would have done to prevent risk of injury, cost and practicality are key considerations.
- eg if risk of injury to a claimant could have been reduced by a very low cost, D will likely be found to have acted unreasonably if he ails to take these steps.
- If great expense would be linked to these precautions, and they may not have resulted in limiting the risk of injury that much, it may be found reasonable D did nothing.
- Note great expense will not excuse D if the risk of injury to claimant is great.
- Also note that, if D did not make expenditure because of lack of resources, courts will not view this as a reasonable excuse.
Explain the factor of D’s purpose which the court will consider.
- Value of society is a factor courts may consider.
- If D’s actions are in the public interest for example, D will be less likely to be Lia le in negligence.
- Therefore degree of risk D justifiably can take is determined to some extent by the purpose of the activity.
- Note Case of Watt where claimant was a fireman injured during transport of machinery to save a woman trapped in a fire. This was because the correct lorry wasn’t available but the employer was not liable as there wa sa human life at risk.
- where human life is at risk, D may be justified in taking greater risks which would seem abnormal in different situations.
Explain the common practice consideration.
D’s sued in negligence could escape liability where they can show they complied with accepted practice in that profession/ trade.
Explain the current state of knowledge consideration.
Standard is that f hypothetical reasonable person. As such it may be necessary for the court to ask what the reasonable person would have foreseen given the circumstances. D’s activities are therefore also partly judged by the standard of current knowledge (in that context).
in other words, D cannot be expected to take reasonable precautions against a risk they are not (and could not) have been aware of.
In the absence of witnesses to testify to a breach of duty, can the court draw inferences based on the damage to property/ injury suffered?
Yes in a very small number of cases the court will be prepared to do this (under the maxim res ipsa loquitur which means ‘the thing speaks for itself’).
This maxim can only be relied on by the claimant where:
1) The thing causing the damage must have been under d’s control (or the control of someone who was under the responsibility of D);
2) The accident must be such that would not normally happen without negligence;
3) the cause of the accident is unknown to the claimant - so that the claimant has no direct evidence of any failure by D to exercise reasonable care.
In the rare occasion where the maxim of res ipsa loquitur is satisfied, what does D have to prove and how can they do this?
Where the maxim is satisfied, D therefore must provide a reasonable explanation as to how the accident could have occurred without negligence.
This is done either by:
1) producing evidence to show how the accident actually happened and that this was not due to their own negligence; or
2) producing evidence to show that they had at all times used all reasonable care (in the event they are not able to prove how it happened without negligence).
Explain the effect of the Civil Evidence Act 1968, s11.
- D who has been convicted of a criminal offence is presumed to have committed that offence in any subsequent civil proceedings.
- This is particularly useful for claimants as it can hep them prove D fell below a reasonable standard of care, where the offence of which D had been convicted involved careless conduct.
- Key point here is to rely on this, the criminal conviction must be related to the claim in negligence.
