Negligence: Breach Of Duty Flashcards
Definition
Refers to the standard of care that is appropriate and the duty owes. A breach of duty simply occurs when the party owing the particular duty falls below the standard of behaviour that is required by the particular duty in question
Judge determined whether to he person has fallen below the standard according to established tests.
All circumstances of his the case are observed
When was the ‘reasonable man’ test identified?
Blyth v Proprietors of the Birmingham Waterworks (1856)
Blyth v Proprietors of the Birmingham Waterworks (1856)
A water main was laid in which there was a ‘fire plug’.
This was a wooden plug in the main that would allow water to flow through a cast iron tube up to the street when necessary.
Severe frost loosened the plug and flooded the claimants house, cast iron tube blocked with ice.
There was nothing that the defendants could have done to reasonably prevent the damage and there was no liability.
Glasgow corporation v Muir (1943)
Small children scalded when a tea urn was dropped.
Children buying Icecream and corporation allowed church to come inside on a rainy day.
Breach of duty is baso
The defendant is at fault and is therefore liable for the damage caused.
Judge and policy considerations
Who can best stand the loss- afford it? Eg tesco ‘never sue a man of straw’
Whether or not the defendant is insured- company pay rather than defendant. Motorists, employers, professional bodies, manufacturers
The extent to which the decision will prevent similar behaviour in the future- compensating for loss and damage suffered but also have a deterrent element
Floodgates argument
Whether or not the types of actions should be discouraged- against the police or administrators for law
Alternative means of remedy available?
Standard of care
Foreseeability of risk Magnitude of risk The extent of possible harm (thin skull rule) Social utility of the activity Practicability if precautions Common practice Standard of care and different classes of the defendant- children, disabled, motorists People engaged in sport People who lack specialist skills People using equipment
Glasgow corporation v Muir (1943)
Small children scalded when a tea urn was dropped.
Children buying Icecream and corporation allowed church to come inside on a rainy day.
Breach of duty is baso
The defendant is at fault and is therefore liable for the damage caused.
Judge and policy considerations
Who can best stand the loss- afford it? Eg tesco ‘never sue a man of straw’
Whether or not the defendant is insured- company pay rather than defendant. Motorists, employers, professional bodies, manufacturers
The extent to which the decision will prevent similar behaviour in the future- compensating for loss and damage suffered but also have a deterrent element
Floodgates argument
Whether or not the types of actions should be discouraged- against the police or administrators for law
Alternative means of remedy available?
Standard of care
Foreseeability of risk Magnitude of risk The extent of possible harm (thin skull rule) Social utility of the activity Practicability if precautions Common practice Standard of care and different classes of the defendant- children, disabled, motorists People engaged in sport People who lack specialist skills People using equipment
Foreseeability of risk
There is no obligation on the defendant to guard against risks other than those that are within his/her reasonable contemplation.
It would be unfair to make a defendant responsible for the unforeseeable
Foreseeability of risk case
Roe v Minister of Health
A patient became paralysed after being injected with nupercaine, a spinal anaesthetic.
This had been stored inside glass ampoules themselves stored in a sterilising fluid, phenol.
Evidence showed that the phenol solution has entered the anaesthetic through hairline crack in the ampoules, contaminating it and causing paralysis.
Never happened before = unforeseeable
Aware of the possibility then the defendant must guard against it
Foreseeability
Walker v Northumberland County Council (1995)
Senior another suffered a nervous breakdown
Employers knee that he might suffer another breakdown when he returned to work if the pressures at his work were too severe and stressful.
They took insufficient steps to reduce the pressures of his workload and when he was again made I’ll they were in breach of their duty to take reasonable steps to avoid psychiatric injury knowing of his state of health
Magnitude of risk
Wherever we owe a duty to another person we must all guard against the risk of doing harm. The degree of caution that we must exercise will obviously be dictated by the likelihood of the risk. The magnitude of the risk then can be balanced against the extremes that must be taken in order to avoid it.
Bolton v Stone
Hit by cricket ball.
100 yards away from batsman.
He was 78 yards from 17 foot Fence
6 times in 28 years
No liability as cricket ground did everything reasonable to avoid risks of people being hit.
Haley v London Electricity Board
Hole dug along pavement
Hammer show hole
Blind man stick didn’t feel hammer = fell and now deaf
Enough blind people in the community for precautions to be taken and cost is very low
Defendants liable for negligence
Thin skull rule
The court will not only be concerned with the likelihood that harm will occur but the risk that the harm will be great if it does occur.
The defendant must ‘take the claimant how he finds him’
Paris v Stepney Borough Council (1951)
Claimant was a mechanic who was blind in one eye.
Accident at work made him fully blind.
No safety goggles supplied-really required to do so.
They were then liable to the defendant to the extent of causing total blindness rather tan merely for loss of sight in one eye.
The claimants partial sight meant that the duty towards him was necessarily greater than normal.
Mattocks v Mann
Claimant able to recover the cost of hiring a replacement vehicle used during a delay chased by the insurers negligent failure to pay for the repairs to her vehicle.
She was unable to pay for the repair costs herself and it was forswear that she would hope that the insurers would meet those costs