Negligence: Breach of Duty

Question 1

what must D owe to be liable in negligence?

Answer 1

DOC to C

Question 2

what is breach of duty?

Answer 2

when D fails to meet required standard of care for their duty

Question 3

eg of breach of duty?

Answer 3

driver speeding + causing crash breaches DOC.

but if driver had sudden illness + lost control, there’s no breach because situation was unexpected

Question 4

how does judge decide if there was BOD?

Answer 4

1. what should D have done? legal Q
2. did D’s actions fall below required standard? factual Q

Question 5

why can proving BOD be difficult?

Answer 5

facts may be unclear, disputed or lack clear evidence + WS may conflict

Question 6

what is the standard of care?

Answer 6

D’s actions are compared to what a “reasonable person” would do in the same situation

Question 7

who is a “reasonable person”?

Answer 7

an average, sensible person who acts neither too cautiously nor too recklessly.

Question 8

what did blyth v birmingham waterworks estbalish?

Answer 8

negligence occurs when someone fails to do what a reasonable person would do

or does something a reasonable person would avoid

Question 9

what is D’s responsibility re standard of care?

Answer 9

act w/in same care as reasonable person would in similar circumstances

Question 10

what is the reasonable person etst?

Answer 10

objective test that asks “what would a reasonable person do in the same situation?”

Question 11

what happens if a driver causes an accident due to an unexpected medical condition?

Answer 11

not at fault if unaware of condition.

but if they knew about condition + still drove, they could be liable

Question 12

bolam principle: what is it?

Answer 12

professionals are judged by standard of reasonable person in their profession, not by general standards

Question 13

what standard must a professional meet?

Answer 13

they must act according to a practice accepted by a responsible body of professionals in their field

Question 14

can a professional be negligent if other professionals would act differently?

Answer 14

no, as long as their actions are supported by a responsible body of professional opinion

Question 15

what did the bolitho case clarify?

Answer 15

the court can reject professional opinion if it can’t withstand logical analysis + still find the D negligent

Question 16

what standard is a learner driver held to?

Answer 16

same standard as fully competent driver, regardless of inexperience (nettleship v weston)

Question 17

what is expected of a junior doc?

Answer 17

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)

Question 18

what is expected of someone doing amateur work eg DIY?

Answer 18

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)

Question 19

what happens if D claims special skills?

Answer 19

they are held to higher standard expected of someone w/ those skills. eg, a consultant surgeon must meet standard of reasonable surgeon

Question 20

what if D does not have special skills?

Answer 20

they are judged by the minimum standard required for the task, not their personal abilities or exp

Question 21

how is the standard of care determined for children?

Answer 21

by comparing their actions to what an ordinary child of the same age would do (mullin v richards)

Question 22

can very young children be found negligent?

Answer 22

rarely, because they are less able to foresee harm + act responsibly.

Question 23

how do children U18 participate in legal actions?

Answer 23

they need an adult, “litigation friend”, to rep them in court

Question 24

why might suing a child be impractical?

Answer 24

if child has no financial means to pay a judgment, may not be worthwhile

Question 25

what is the reasonable person standard?

Answer 25

it compares D’s actions to what a reasonable person would do in the same situation

Question 26

factors determining if required standard of care was met?

Answer 26

1. risk created by D’s actions.
2. precautions taken to reduce risk

Question 27

how does court assess magnitude of risk?

Answer 27

considering:

1. likelihood of injury caused by D’s actions
2. seriousness of potential injury

Question 28

what happens when risk of harm is greater?

Answer 28

D is expected to take higher level of care

Question 29

what must D do if their actions are likely to cause harm?

Answer 29

must take more precautions to reduce risk of harm

Question 30

difference b/w reasonable probabilities + fantastic possibilities?

Answer 30

D’s must guard against risks that are reasonably likely, not highly unlikely or fantastic possibilities (fardon v harcourt-rivington)

Question 31

how does seriousness of potential harm affect standard of care?

Answer 31

more serious the harm, the greater the care required, even if the risk is small

Question 32

ruling in paris v stepney borough council (eye injury case)? hint: goggles

Answer 32

employer should have provided goggles because C’s risk of total blindness was v serious, requiring extra care

Question 33

key point in latimer v AEC ltd? (hint: costs + liability)

Answer 33

D was not liable because the risk was small, and cost of fully addressing it (closing factory) was too high

Question 34

can lack of money excuse D from taking precautions?

Answer 34

no, impecuniosity (lack of money) is not a defence if reasonable steps could have been taken to avoid harm

Question 35

how does D’s purpose affect the standard of care?

Answer 35

purpose benefits society eg saving lives? greater risks may be allowed

if activity has little value, D MUST exercise more care

Question 36

how does following common practice affect negligence claims?

Answer 36

following accepted practice in a profession can show D was not negligent, but unsafe practices can still be found negligent

Question 37

who has the burden of proof in negligence claims?

Answer 37

C must prove D breached their DOC on balance of probabilities

Question 38

what type of witnesses can help prove neglgience?

Answer 38

1. witness of fact: people who saw incident
2. expert witnesses: specialists who explain normal standards in specific fields

Question 39

what does res ipsa loquitur mean?

Answer 39

facts alone suggest negligence w/o direct evidence of D’s actions

Question 40

conditions that must be met for res ipsa loquitur to be met?

Answer 40

1. thing causing damage was under D’s control.
2. accident would not normally happen w/o negligence
3. C has no direct evidence of the case

Question 41

what happens if res ipsa loquitur applies?

Answer 41

court may infer negligence, and D must show they were not negligent

Question 42

how does s11 Criminal Evidence Act (CEA) 1968 help C?

Answer 42

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.