Negligence: Breach of Duty

Question 1

what is a summary of breach of duty?

Answer 1

It must then be established that D breached this duty i.e. D must have failed to act up to the standard required by law for fulfilling that duty

Question 2

what is the breach of duty test?

Answer 2

Whether a D has breached their duty is a two-part test:
1. The standard of care D should have exercised i.e. how D ought to have behaved in the circumstances
 This is a question of law

2. Whether D’s behaviour fell below that standard
    This is a question of fact

Question 3

what is the test for the standard of care?

Answer 3

D must meet the standard of the ‘reasonable person’ (Blyth v Birmingham Waterworks’

Question 4

what are the different standards of care?

Answer 4

o The standard of care to be taken by a reasonable person
o The standard of care expected by a skilled defendant
o The standard of care expected by an unskilled defendant
o The standard of care expected by a child

For most people, the standard of care expected of a reasonable person will be applied

Question 5

who is the ‘reasonable person’?

Answer 5

• The reasonable person has been described as ‘the man on the Clapham omnibus’

Question 6

what type of test is the ‘reasonable person’ test?

Answer 6

• This is an objective test – the courts do not take into account the personal attributes of the defendant
• The question is not ‘what did this defendant foresee’ but ‘what would a reasonable person have foreseen in the particular circumstances’

Question 7

what is an example of an application of the ‘reasonable person’ test?

Answer 7

o D is driving and becomes unconscious due to a health condition they were unaware of. D will be held to the standard of care expected of a reasonable driver who is unaware of the condition. So long as they have met this standard they will not be in breach
o However, if D knew they were adversely affected by a medical condition and unreasonably undertook an activity, and caused harm, they may be liable because their performance was impaired.

Question 8

what are the elements to the ‘magnitude of risk’?

Answer 8

1. How likely was it that D’s actions could cause injury?
2. If an injury was caused, how serious was it likely to be?

Question 8

what will the courts consider when evaluating the degree of care expected of a reasonable person?

Answer 8

• the courts will consider all of the circumstances of the case, but in particular:
  o Magnitude of risk
  o Cost and practicability of precautions
  o Defendant’s purpose
  o Common practice
  o Current state of knowledge

Question 9

re: magnitude of risk

explain ‘how likely was it D’s actions would cause injury’?

Answer 9

• The greater the chances of D’s action causing injury, the more precautions D must take
• It is justifiable not to take steps to eliminate a real risk if the risk of injury is small and a reasonable person would think it right to neglect it
• D’s duty is to guard against ‘reasonable probabilities, not fantastic possibilities’ (i.e. man smashed window of car with dog inside and was blinded by splintered glass. D wasn’t liable)
• Just because something is rare does not mean it will be a fantastic possibility

Question 10

re: magnitude of risk

explain ‘If an injury was caused, how serious was it likely to be?’

Answer 10

• The more serious the possible harm to D, the more care D must take

Question 11

explain ‘cost and practicability of precautions’

Answer 11

i.e. what practical measures D could have reasonably taken to reduce injury and the cost of those measures

If the risk of injury could have been substantially reduced as a low cost to D, D is more likely to be found to have acted unreasonably

However, if D would incur great expense to only minimally reduce the risk, they are less likely to have acted unreasonably.

There is a general rule that if D’s failure to exercise reasonable care is attributable to his lack of resources, the courts will not allow D to use this as an excuse

Question 12

explain ‘defendant’s purpose’

Give an example

Answer 12

if D’s behaviour is in the public interest, D is less likely to be held liable in negligence

Watt v Hertfordshire CC (1954)  a woman was trapped under a lorry and special equipment was needed to save her. Three firemen had to hold the equipment on an ordinary lorry as a specialist lorry wasn’t available. C was injured in the process. The court held D was not in breach of duty because this had to be balanced against the end to be achieved and the saving of life justifies the considerable risk.

HOWEVER, this is not to say that the emergency services can take any risk when saving a life. If there is no social utility or it is unlawful then D will be required to exercise a very high degree of care to justify a even a small risk of harm to others

Question 13

explain ‘common practice’

Answer 13

If D can show that they have complied with common practice in their trade / profession, then they may be able to escape liability. However, this is not conclusive. The court can declare a common practice negligent.

Question 14

explain ‘current state of knowledge’

give an example

Answer 14

The standard is that of a hypothetical reasonable person – so it is fair to ask what the reasonable person might have foreseen based on the standard of current knowledge

Roe v Ministry of Health - anaesthetic was contaminated by seepage through invisible cracks. At the time of the incident, this was not known. D was not in breach of duty. They could not have reasonably been expected to take precautions against a risk they weren’t aware of.

Question 15

explain the standard of care expected of a ‘skilled defendant’

Answer 15

• Where a person exercises a special skill, they will be judged according to the degree of skill or competence expected from a person who has that special skill
• If there is a reasonable body of professional opinion that supports the defendant’s actions, then D should not be judged to be negligent
• HOWEVER, if the claimant can demonstrate than the professional opinion relied upon by D is not capable of withstanding logical analysis then the court may find breach of duty

Question 16

explain the unskilled defendant

give two examples

Answer 16

if someone undertakes a task that requires a certain level of skill, they hold themselves out as having the necessary expertise to meet the minimum standard required by the task undertaken

An amateur undertaking a task will be compared to a reasonably competent amateur, not a professional employed in the field of the task

However, if they undertake a task which requires a special skill they do not possesses, this in itself is likely to be negligent

example:
* A learner driver is expected to reach the standard of the reasonable competent driver

• A junior doctor is expected to show the same level of competence as a hypothetical competent doctor in the same post. Allowances will not be made for the fact they are a junior

Question 17

what is the standard of care expected of a children?

Answer 17

A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age

Question 18

what age can a child be found liable in negligence?

Answer 18

There is no fixed age below which a child cannot be found liable in negligence but very young children are rarely found liable but the younger the child is, the less likely they are able to foresee harm

Question 19

can a child be sued in negligence?

Answer 19

A child under 18 cannot be sued unless there is an adult to represent them

It is often not worth suing children as they don’t have any money to pay a judgment

Question 20

what is the standard of proof?

Answer 20

• C must prove on the balance of probabilities that D breached the duty of care owed

Question 21

what type of witness evidence may a claimant rely upon?

Answer 21

o Witness of fact i.e. people who saw what happened
o Expert witnesses i.e. people who can say what the normal practice / level of precaution would be, such as a medical expert

Question 22

when is res ispa loquitur used?

Answer 22

when there is no witness evidence

Question 23

what does res ispa loquitur mean?

Answer 23

the thing speaks for itself

Question 24

what are the conditions to rely on res ispa loquitur?

Answer 24

o The thing that caused the damage must be under the control of D or someone for whom D is responsible
o The accident would not have happened if someone hadn’t been negligence
o The cause of the accident is unknown the C

All three must be proven. Very rare to successfully argue this.

Question 25

give an example of res ispa loquitur

Answer 25

Scott v London and St Katherine Docks Co (1865)
o C was hit and injured by a bag of falling sugar.
o D were loading sugar nearby with a hoist.
o There were no witnesses to the accident and there was no evidence of D’s failure to exercise reasonable care.
The court held that this accident would not have occurred if someone had not been negligent. The burden then shifts onto D to prove that they were not negligent. If they cannot, then they are found liable, as they were in this case

Question 26

if the claimant argues res ispa loquitur, what must the defendant do?

Answer 26

they must provide a reasonable explanation as to how the accident might have happened without negligence i.e.:
o How the accident actually happened and that this was not due to negligence; or
o If they cannot evidence the above, then that at all times they used all used reasonable care.

Question 27

what is the effect of s11 Civil Evidence Act 1968?

Give an example

Answer 27

D who has been convicted of a criminal offence is presumed to have committed the offence in subsequent civil proceedings. However, the conviction must be relevant to the civil claim.

This can help a claimant to prove that D fell below the standard of care. They can rely on the conviction as evidence.

• Example > A car accident occurs and the defendant is convicted of driving without due care and attention. The claimant in a subsequent civil claim can use this conviction as evidence that the defendant failed to take reasonable care when driving. This is because the criminal conviction is relevant to the claim in negligence. However, if they are convicted without insurance, this does not prove that D failed to drive carefully.