Negligence: Breach of Duty: Part 2 Flashcards
- Breach of Duty Means….
Breach of Duty means that the defendant’s standard of care falls below the standard, expected of the reasonable man doing the same activity, as in Vaughan v Menlove, and defined by Baron Alderson in Blyth v Birmingham Water Works.
- This is an…
This is an objective test, and the defendant’s characteristics are only considered in 3 situations:
- If the Defendant is a Professional…
If D is a professional, they are compared to a reasonably competent professional and there must be a responsible body of professional opinion to support their actions (BOLAM v FRIERN BARNET HOSPITAL).
- The Bolam Test was amended in…
The Bolam Test was amended in BOLITHO v HACKNEY HA so that a professional supporting the defendant must show a ‘logical basis’ for their view.
4a. In Montgomery v Lanarkshire HB…
In MONTGOMERY v LANARKSHIRE HB it was established that a healthcare professional must make patients aware of all material risks so that patients can give informed consent to treatment (‘test of materiality’).
- If the Defendant is a learner or trainee…
If D is a learner/trainee they are compared to a qualified person, as in NETTLESHIP v WESTON.
- If the Defendant is a child…
If D is a child they are compared to a child of the same age, as in MULLIN v RICHARDS.
6a. Here D’s Standard of Care Will Be Compared To..
Here, D’s standard of care will be compared to that of the [eg. reasonable person driving a car OR reasonably competent professional lorry driver OR the reasonably competent qualified person OR the reasonable child of the same age].
- The court will consider…
The court will consider ‘Risk Factors’ which may raise or lower the standard of care.
- Firstly, if the size of the risk of harm…
Firstly, if the size of the risk of harm is high, the standard of care will be high, as in BOLTON v STONE.
Here, [eg. the size of the risk of harm to C was high because driving can be very dangerous, so D’s standard of care should have been high and he should have driven more carefully].
- Secondly, special characteristics…
Secondly, special characteristics of the claimant may raise the standard of care, such as being a vulnerable victim, or there being a serious potential injury, as in PARIS v STEPNEY BOROUGH COUNCIL.
Here, [eg. there was a serious potential injury to C because he was blind in one eye / he was a pedestrian crossing a busy road and could have been killed and C was a vulnerable victim because he was blind in one eye / he was unable to move out of the way, so D’s standard of care should have been high and he should have driven carefully].
- Thirdly, D is expected to take…
Thirdly, D is expected to take adequate precautions to reduce the risk, that are in proportion to the size of the risk in terms of cost and practicality, as in LATIMER v AEC LTD.
Here, [eg. the cost of D taking precautions to reduce the risk was low compared to the size of the risk of harm because…. (e.g. driving more carefully is not too costly compared to the risk of causing serious harm, and it was practical to take precautions to reduce the risk because driving slowly is easy to do, so D should have driven more carefully)
- Fourthly…
Fourthly, the social utility of the activity may lower the standard of care as a matter of public policy, for example in an emergency situation, and will particularly apply to the emergency services, as in WATT v HERTFORDSHIRE COUNTY COUNCIL.
Here, [eg. there was no social utility to D’s activity such as there being an emergency situation or D being in the emergency services, so his standard of care should not have been lower than expected].
- To Conclude…
TO CONCLUDE, D did breach his duty to C by falling below the standard of care of the [eg. reasonable person driving his car OR reasonably competent professional doctor as it is unlikely that his actions would be supported by a responsible body of professional opinion with a logical basis OR reasonably competent qualified person OR reasonable child of that age].
