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
The social utility of an activity
A defendant can sometimes escape liability in a case because it is possible to show that there was justification for taking the risk in question.
This might be so for instance where the defendant acts to avoid a potentially worse event
Watt v Hertfordshire County Council (1954)
A woman was trapped in a car crash.
The fire station summoned to the incident had a special heavy jack.
Normally had its own vehicle and secured.
Vehicle elsewhere.
Driver breaker and injured fireman
=no negligence because the situation was an emergency and it was justified risk
Griffen v Mersey Regional Ambulance
Liability when an ambulance crossing a red light crashed.
Other motorist was held to be contributory negligent
Practicality of precautions
The reasonable man only has to do what is reasonable in order to avoid risks of harm.
This means that there are no obligations to go to extraordinary lengths, particularly if the risk is slight
Latimer v AEC ltd
A factory became flooded after a torrential rainstorm.
The water mixed with oil and grease on the floor making the surface very skippy and dangerous
When the water subsided sawdust was spread over the floors in order to make them secure.
There was not enough to cover the whole floor and Latimer slipped on am uncovered patch and was injured.
Everything reasonable done in the circumstances and balancing out the possible risks, it was unreasonable to expect the factory to be closed.
It was held that there was no negligence
Bradford-Smart v West Sussex county council, The Times, 29th January 2002.
COA accepted that a school would be in breach of its duty of care of its pupils failed to take steps that were within its power to stop bullying.
Court accepted that this could even apply to incidents that arose off the school premises.
Only rare exceptions would give tide to breach of duty and this wasn’t one of them
Common practice
A negligent activity cannot be excused merely because it’s common practice.
The fact that something is generally practised may be strong evidence that it is not negligent, otherwise it would not normally be carried out
It will not necessarily be negligent to fail to follow common practice
Brown v Rolls-Royce Ltd (1960)
An employee contracted dermatitis
Adequate washing facilities
Barrier cream that was commonly used in the industry
Not negligent in not providing barrier cream because it could not be shown in the case that using the cream was guaranteed to prevent the condition.
The standard of care of different classes of defendant
The standard of care is measured objectively but the courts often look how the standard of care may suffer according to the Thor of person who owes the duty.
Children
Little case law involving the standard of care owed by children.
Case law from other jurisdictions indicated that a child was not expected to have the same skill or understanding as an adult and therefore the standard of care owed was that appropriate to the age of the child in question
McHale v Watson (1966)
A 12-year-old boy injured a girl in the eye when he threw a steel rod at a post.
There was held to be no negligence
Subjective rather than objective test but the English courts have tended to follow it
Mullin v Richards (1998)
Here two 15 year old school girls were fencing with plastic rulers.
One ruler broke and one of the girls was injured in the eye.
COA held that as such games were commonplace and would normally not lead to injury then the injury was unforeseeable to girls of that age and there was no negligence
Armstrong v Cottrell (1993)
The judge in this case was prepared to reduce damages for a 12-year-old boy by a third because he felt that children of that age should know the Highway Code
Morales v Eccleston (1991)
Damages reduced by 75% 11 year old run into road to collect football
Jenny v North Lincolnshire (2000)
COA held that the local authority was liable for the injuries to a young school pupil who was injured as the result of being on a major road during school hours
Disabled
Where a person is sick or suffering from a disability it is likely that the standard of care owed is what would be appropriate in the case of the reasonable man suffering the same illness or disability.
It is inevitable that the same degree of care will not be expected as would for a person in normal health.
A person suffering from a disability of the mind may be liable for the torts he commits if sufficiently aware of the quality of the act
Morriss v Marsden (1952)(disabled)
Defendant was a schizophrenic who attacked a claimant and was thus accused of battery.
It was held that persons suffering from a mental illness could be liable for intentional torts even if unaware that their actions were wrong if they knew the quality of the act they committed
Motorists
In general the same standard of care is expected of all motorists regardless of their age or experience, and even of learner drivers
Nettleship v Weston (1971)
A learner driver on her third lesson crashed into a lamp post injuring the person teaching her to drive.
COA found she was liable despite her being a learner driver
Roberts v Ramsbottom (1980)
Driver crashed into a stationary vehicle after suffering a cerebral haemorrhage (stroke)
He continued to drive after the seizure and the court felt that he was negligent for doing so.
The court accepted that a defendant would have a defence if his actions were entirely beyond his control, but that here the driver should have stopped driving immediately.
However, a motorist will not be liable if he was unaware of the disabling condition that causes the loss of control.
Mansfield v Weetabix ltd (1997)
Held that the driver could not have reasonably known of the infirmity that led to his loss of control and the subsequent accident was not his fault
The previous case was said to be well decided on this point but was still correct in that the driver continued to drive when he should have known that he was unfit to do so
People engaged in sport
The standard of care appropriate to participants in sport is the ordinary standard of reasonable care.
The level of card required will depend on the circumstances of the case including whether the player was professional or amateur
Condon v Basi (1985)
Footballer was injured in a dangerous and unacceptable tackle during an amateur football match.
Sir John Donaldson MR suggested in the case that a much higher degree of care would be expected of a professional footballer
McCord v Swansea City AFC Ltd and another, The Times, 11 February 1997
Here a tackle by the player of the defendant football club ended the claimants career.
Judge was not prepared to consider the tackle as reckless, it was a serious mistake of judgement that amounted to a beach of his duty of care to fellow players.
The level of care required is always taken into context of the individual circumstances because of the inherent risk of injury of which each player is aware
Watson v British boxing board of control (2001)
the claimant suffered severe head injuries after a blow to the head during a boxing match as a result of which he also suffered brain damage.
The organisers were held to be in breach of their duty of care by failing to provide adequate medical facilities at the ringside that could have reduced the extent of the damage
Spectators
A spectator at a sporting contest is generally said to consent to the risks associated with being present at the sport.
A person engaged in the sport, then, will not be liable in negligence to a spectator for any injuries or damage caused in the normal course of the sport unless the sportsman has shown a blatant and reckless disregard for the safety of the spectator.
People using specialist skills
If a person carries out a task requiring a specialist skill he will be judged according to the standard of a person reasonably competent in the exercise of that skill
This does not mean that an amateur will be expects to show the same degree of skill as a professional
Wells v Cooper (1958)
A tradesman delivering fish was injured by a door handle fitted by the householder came off in his hand.
COA held that the appropriate standard of care was that of a competent carpenter.
Claimants complaint was the handle was fixed to the door with three-quarter-inch screws- inadequate
Screws a carpenter would use = no negligence
A person not possessing specialist skills will not be expected to exercise the same standard of care as a skilled person unless that standard is appropriate to the circumstances
Phipps v Whitely (1938)
Jeweller pierced ears in a whitewashed room using sterilised equipment.
Claimant contracted a blood disorder the jeweller was not negligent.
He had taken all the reasonable steps in the circumstances to avoid the risk of harm and could not be fixed with the same standard as a surgeon performing an operation
Appropriate standard of care was according to a jeweller NOT surgeon
People using equipment
People know how to generally use equipment UNLESS it is very specialist equipment requiring specialist skills
So where a person suffers injury, loss or damage while using the equipment there is no requirement by the other party to check that they are able to use it properly, so there is NO breach of duty
Makepeace v Evans, The Times, 13 June 2000
Claimant was a decorator hired by the first defendant sub- contractors, who in turn were hired by the second main contractors.
Claimant used a scaffolding tower provided by the second defendants.
Site agent didn’t enquire whether the claimant was competent to use it.
Claimant injured=action against the 2nd defendants failed.
Standard piece of equipment in the trade and they were entitled to assume that he was able to use it or seek advice.
Otherwise would “extend the nursemaid school of negligence too far”.
