negligence: breach of duty

Question 1

what are the three elements of negligence?

Answer 1

1. duty of care
2. breach of duty
3. damage

Question 2

the standard expected

Answer 2

• the duty of care must be breached
• standard of care: reasonable man
• objective test
• some special characteristics and risk factors are considered

Question 3

objective test: who is the reasonable man?

Answer 3

Blyth v Birmingham Waterworks:

“negligence is the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do”

Question 4

characteristics of the defendant

Answer 4

• in some situations, the standard is not purely an objective one and the courts are able to take into account certain characteristics of the defendant

1. children
2. learners
3. professionals

Question 5

standard of children

Answer 5

Mullin v Richards (1988);
two 15-year-old school girls were fighting with plastic rulers. the ruler blinded one of the girls. the girl was only expected to meet the standard of a reasonable child of that age (15-year-old school girl) not that of a reasonable man. She was found not to be in breach of duty
- children are judged by the standard of other children of their age, not by the reasonable man

Question 6

standard of learners

Answer 6

Nettleship v Weston (1971)
- D was a learner driver. during a driving lesson, she mounted the pavement and hit a lamp post. Mr. Nettleship fractured his knee. D argued that the standard of care should be lowered for learner drivers. the court held that the standard of care should not be lowered for learner drivers
- a learner driver is expected to meet the same standard as a reasonable qualified competent driver

Question 7

standard for experts

Answer 7

Bolam v Friern HM (1957):
- C was undergoing electroconvulsive therapy. the doctor did not give any relaxant drugs and suffered a serious fracture

• the standard for experts is that of a competent expert skilled in that particular art. -
• It is not negligent if another skilled expert would have done the same

Question 8

risk factors

Answer 8

• when assessing the standard expected, the courts will take into account ‘risk factors’ which can have the effect of raising the standard expected i.e. the reasonable person would be expected to take more care
• more risk factors = more likely the breach
• fewer risk factors = less likely the breach

Question 9

risk factors: size of the risk

Answer 9

low risk:
bolton v stone (1951):
- a cricket ball hit a passer-by in the street. there was a 17 foot high fence around the ground and the wicket 100 yards from this fence. balls had only been hit out of the ground 6 times in 35 years. because of the low risk involved, there was no breach of the duty of care

• where there is low risk, there may be no breach of duty. here, the likelihood of harm was low. D had taken all practical precautions in the circumstances

high risk:
Haley v LEB (1965):
-the electricity board dug a hole, and in order to give warning of the danger, they laid a long-handled hammer across the pavement. C, a blind man, tripped over the hammer and was injured. the board were aware that a large number of blind people walked unaided down the street

• there was a breach of duty where there was a high risk of harm which was known to the defendants

Question 10

risk factors: magnitude of the harm

Answer 10

Paris v Stepney BC (1951):
- C was blind in one eye. he was not given any protective goggles. while working, metal went into his one good eye, leaving him totally blind

• the magnitude of potential harm was greater for Paris so more precautions should have been taken. the cost and effort of providing goggles was very small compared to the magnitude of the risk

Question 11

risk factors: practicality of taking precautions

Answer 11

Latimer v AEC (1953):
- a factory floor became flooded and an employee slipped up and was injured. the d’s had put up warning signs, mopped up and placed sawdust in the most used places to make it as safe as possible. there was no breach of duty

• D only has to take reasonable precautions to minimise the risk. there was no duty close the factory, because this was not proportionate to the risk

Question 12

risk factors: potential benefits of risky activity

Answer 12

Watt v Hertfordshire County Council (1954):
- in an emergency, the fire brigade was not able to use the correct vehicle for transporting a heavy lorry jack. C was injured when the jack fell on her leg. there was no breach of duty

• the emergency of the situation and utility of the D’s conduct in saving a life outweighed the need to take precautions