Negligence - Breach of Duty of Care - CHARACTERISTICS Flashcards
Breach of Duty
A defendant breaches a duty owed to the claimant when in fact the defendant’s actual behaviour falls below the standard of care expected in law
Breach of Duty - 3 stage test
Who should this defendant be compared against?
What would the comparator have done in the circumstances?
Did this defendant do what the comparator would have done, in the circumstances?
Burden of proof and Standard of proof
The claimant has the burden of proving that the defendant is in breach of the duty of
care owed by the defendant to the claimant.
The standard of proof is on the balance of probabilities:
is it more likely than not that the defendant has failed to take reasonable care to avoid causing reasonably foreseeable harm to the claimant?
Fault
Negligence requires fault
If there is no fault then there is no breach of duty
Can’t establish fault if it was purely an accident
Cole v Davis-Gilbert –> ‘Accidents happen, and
sometimes they are what can be described as pure accidents in the sense that the victim cannot recover damages for the resulting injury because fault cannot be established.’
Standard of Care
Characteristics – What internal characteristics personal to D should be considered in deciding whether D has met the standard of care? Who should the defendant be compared against?
Circumstances – What would the person against whom the defendant is to be compared have done in the particular external circumstances of the event?
Has the actual defendant done what this comparator would have done?
Characteristics (Who should D be compared against?) - ADULT D AND UNSKILLED ACTIVITIES
An adult defendant doing an ordinary / unskilled activity is compared against an objective standard of a reasonable person in the circumstances
D’s personal characteristics are disregarded
The ‘reasonable person’
Blyth v Birmingham Waterworks Co.
‘Negligence is the omission to do something which a reasonable man… would do, or doing something which a prudent and reasonable man would not do.’
Characteristics (Who should D be compared against?) - CHILD DEFENDANTS
A child defendant is compared against an ordinary prudent and reasonable child of the same age as the actual defendant in the circumstances
The stage of mental/physical development (or impairment) is (probably not) relevant
There is no minimum age of liability in tort (or a defence of ‘childhood’): Gorely v Codd (1966)
What standard is expected of a Child Defendant?
Mullin v Richards (1998)
‘The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15-year-old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendants situation would have realised gave rise to a risk of injury, it is whether an ordinarily prudent and reasonable 15-year-old schoolgirl in the defendants
situation would have realised as much.’
Alternatives to suing a child defendant
(Younger) children are rarely sued in negligence:
Practically, a child defendant will often lack personal resources to compensate a claimant.
An alternative route to a remedy: C. may consider that someone responsible for supervising the child defendant is at fault, e.g. the child defendant’s parent/guardian, based on a breach of a duty owed to others to exercise reasonable supervision and control over the child (e.g. Carmarthenshire County Council v Lewis 1955
That person will be judged against the objective standard of the reasonable parent in the circumstances
Characteristics (Who should D be compared against?) - ADULT D’S AFFECTED BY ILLNESS
The standard of care expected of a defendant who is impaired by physical or mental illness at the date of the conduct causing harm is the objective standard of the
reasonable person, unless the effect of the illness entirely eliminated any fault or responsibility for the injury, which would only be the case if that person had done nothing to cause the claimant’s injury.
Dunnage v Randall 2015 –> ‘…However, his liability is no
doubt treated in law as the price for being able to move freely within society despite his schizophrenia.’
Characteristics (Who should D be compared against?) - ADULT D’s CARRYING OUT SKILLED ACTIVITIES
The standard of care expected of a defendant who is:
> carrying out a skilled activity; or
> holding themselves out as having a skill; or
> learning a skill
is the objective standard of the ordinary skilled person exercising and professing to have that special skill i.e. following a responsible body of professional practice (Bolam v Friern Hospital 1957)
Standard of care expected for skilled activities
Peel & Goudkamp:
‘the law requires him to show such a skill as any
ordinary member of the profession or calling to which he belongs, or claims to belong, would display.…’
What is a special skill or competence? Bolam Approach
The Bolam approach to the standard of care applies to the situation where the defendant:
1 - carries on an activity which involves the use of some special skill or competence; or
2- holds himself out as having some special skill or competence
Bolam Test
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that
it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art.’
Where the defendant was carrying out (or holding themselves as having) a special skill, the defendant is judged against whether they followed a practice (out of
many different practices) accepted as proper at the time by a responsible and reasonable body.
What about someone learning a skill?
Where an unskilled person carries out a specialised task, the starting point is that
the standard expected is that of the reasonably competent skilled person carrying
out that task Nettleship v Weston (1971) CA (learner driver)
Problems with individual standard
Nettleship v Weston (1971) CA per Lord Denning MR:
A learner driver may be doing his best but his incompetent best is not good enough.’
‘…On whom should the risk fall? Morally the learner driver is not at fault, but legally she is liable to be because she is insured and the risk should fall on her.’
