Negligence: breach of duty

Question 1

What is the significance of the ‘Man on the Clapham Omnibus’ story?

Answer 1

• Establishing principle of the man of ‘ordinary prudence’
• “liability for negligence should be co-extensive with the judgement of each individual, which would be as variable as the length of the foot of each individual.” (per Tindal CJ)
• Not entirely subjective, everything decided case-by-case

Question 2

Which questions are raised regarding the ‘reasonable person’?

Answer 2

• What standard of care does the law expect?
• Is the test subjective or objective?

Question 3

From the case of Hall v Brooklands [1933], what was the main issues and what did the courts decide?

Answer 3

• Issue: what would a reasonable person have done and what should the reasonable precautions be?
• COA: degree of risk - take reasonable steps to mitigate risk of spectators (due to the sport being dangerous)

Question 4

Using an example scenario (i.e., crossing the road in a busy road for an appointment), what question would be raised with the cost-benefit analysis?

Answer 4

Is the urgent appointment really important that we need to risk our lives for it?

Question 5

What are the main circumstances of standard of care? (link to cases)

Answer 5

• Likelihood of harm (Hall case)
• Gravity of harm (Paris case)
• Cost of precautions (Latimer case)
• Utility of conduct (Daborn case)
  (also relevant legislation is Social Action, Responsibility and Heroism Act 2015)

Question 6

In the case of Sellwood v LMS Rly Co, what are the facts of the case and what did the courts hold?

Answer 6

• Flat set on fire by spark from steam locomotive pulling heavy freight train
• Decision: deemed a reasonable risk for engine not to be fitted to trap sparks due to the surrounding circumstances

Question 7

For standard of care, what are the main characteristics that courts focus on the defendant?

Answer 7

• Defendant’s capacity mainly
• Skills and experience
• Mental and physical afflictions
• Age
• Defendant’s knowledge

Question 8

For skills and experience, provide some cases and what the courts held.

Answer 8

• Nettleship: morally learner drive not at fault but legally she is; however losses was to the insurance company
• Wilsher: don’t judge junior doctor to same standards as senior; the consultant is at fault due to no supervision

Question 9

For mental or physical incapacity, provide some cases and what the courts held.

Answer 9

• Roberts: individual must be reduced to state that they couldn’t move and should be afflicted immediately (driver shouldn’t drive therefore)
• Mansfield: too severe, complete automatism is suffice to reduce duty of care

Question 10

For age, provide some cases and what the courts held.

Answer 10

• Mullin case: damaged cause by flying fragment of ruler would be expected by child’s action
• Orchard case: knocking off supervisor is an unlikely outcome but expected by child’s actions
• Generally on case-by-case basis

Question 11

What are the industrial practices and bodies of professional opinion on standard of care?

Answer 11

• Q: To what extent should the standard of care be judged by reference to standard industrial practices, guidelines, codes of practice etc?
• Compliance with ‘common practice’ {Brown}
• Compliance with professional standards {Bolam}
• Can professional opinion be challenged?
• Effect of litigation on industry practices

Question 12

How would you prove breach of duty? (res ipsa loquitur)

Answer 12

• “Facts speak for themselves” (accidents happen because of negligence)
• May allow interference of negligence to be drawn in absence of refuting evidence