Negligence: Breach of Duty Flashcards
what must D owe to be liable in negligence?
DOC to C
what is breach of duty?
when D fails to meet required standard of care for their duty
eg of breach of duty?
driver speeding + causing crash breaches DOC.
but if driver had sudden illness + lost control, there’s no breach because situation was unexpected
how does judge decide if there was BOD?
- what should D have done? legal Q
- did D’s actions fall below required standard? factual Q
why can proving BOD be difficult?
facts may be unclear, disputed or lack clear evidence + WS may conflict
what is the standard of care?
D’s actions are compared to what a “reasonable person” would do in the same situation
who is a “reasonable person”?
an average, sensible person who acts neither too cautiously nor too recklessly.
what did blyth v birmingham waterworks estbalish?
negligence occurs when someone fails to do what a reasonable person would do
or does something a reasonable person would avoid
what is D’s responsibility re standard of care?
act w/in same care as reasonable person would in similar circumstances
what is the reasonable person etst?
objective test that asks “what would a reasonable person do in the same situation?”
what happens if a driver causes an accident due to an unexpected medical condition?
not at fault if unaware of condition.
but if they knew about condition + still drove, they could be liable
bolam principle: what is it?
professionals are judged by standard of reasonable person in their profession, not by general standards
what standard must a professional meet?
they must act according to a practice accepted by a responsible body of professionals in their field
can a professional be negligent if other professionals would act differently?
no, as long as their actions are supported by a responsible body of professional opinion
what did the bolitho case clarify?
the court can reject professional opinion if it can’t withstand logical analysis + still find the D negligent
what standard is a learner driver held to?
same standard as fully competent driver, regardless of inexperience (nettleship v weston)
what is expected of a junior doc?
must perform at level required for their position, even on their 1st day.
if out of their depth, they must seek expert help (wilsher v essex area health authority)
what is expected of someone doing amateur work eg DIY?
must meet reasonable standard of skill. if task is typically done by a professional, attempting it w/o necessary skill may be negligent (wells v cooper)
what happens if D claims special skills?
they are held to higher standard expected of someone w/ those skills. eg, a consultant surgeon must meet standard of reasonable surgeon
what if D does not have special skills?
they are judged by the minimum standard required for the task, not their personal abilities or exp
how is the standard of care determined for children?
by comparing their actions to what an ordinary child of the same age would do (mullin v richards)
can very young children be found negligent?
rarely, because they are less able to foresee harm + act responsibly.
how do children U18 participate in legal actions?
they need an adult, “litigation friend”, to rep them in court
why might suing a child be impractical?
if child has no financial means to pay a judgment, may not be worthwhile
what is the reasonable person standard?
it compares D’s actions to what a reasonable person would do in the same situation
factors determining if required standard of care was met?
- risk created by D’s actions.
- precautions taken to reduce risk
how does court assess magnitude of risk?
considering:
- likelihood of injury caused by D’s actions
- seriousness of potential injury
what happens when risk of harm is greater?
D is expected to take higher level of care
what must D do if their actions are likely to cause harm?
must take more precautions to reduce risk of harm
difference b/w reasonable probabilities + fantastic possibilities?
D’s must guard against risks that are reasonably likely, not highly unlikely or fantastic possibilities (fardon v harcourt-rivington)
how does seriousness of potential harm affect standard of care?
more serious the harm, the greater the care required, even if the risk is small
ruling in paris v stepney borough council (eye injury case)? hint: goggles
employer should have provided goggles because C’s risk of total blindness was v serious, requiring extra care
key point in latimer v AEC ltd? (hint: costs + liability)
D was not liable because the risk was small, and cost of fully addressing it (closing factory) was too high
can lack of money excuse D from taking precautions?
no, impecuniosity (lack of money) is not a defence if reasonable steps could have been taken to avoid harm
how does D’s purpose affect the standard of care?
purpose benefits society eg saving lives? greater risks may be allowed
if activity has little value, D MUST exercise more care
how does following common practice affect negligence claims?
following accepted practice in a profession can show D was not negligent, but unsafe practices can still be found negligent
who has the burden of proof in negligence claims?
C must prove D breached their DOC on balance of probabilities
what type of witnesses can help prove neglgience?
- witness of fact: people who saw incident
- expert witnesses: specialists who explain normal standards in specific fields
what does res ipsa loquitur mean?
facts alone suggest negligence w/o direct evidence of D’s actions
conditions that must be met for res ipsa loquitur to be met?
- thing causing damage was under D’s control.
- accident would not normally happen w/o negligence
- C has no direct evidence of the case
what happens if res ipsa loquitur applies?
court may infer negligence, and D must show they were not negligent
how does s11 Criminal Evidence Act (CEA) 1968 help C?
criminal conviction can be used as proof of negligence in civil case
only applies if conviction involves careless behaviour, not unrelated offences like driving w/o insurance.
