Negligence Pt. 2 Flashcards
How is breach of duty established!
Once established C was owed a duty of cafe, it then has to be decided whether it has been breached.
Two steps are:
1. Comparing D’s conduct with standard of care expected from a reasonable person and
2. Considering risk factors which raise or lower that standard
What is the reasonable person test for establishing a breach of duty?
An objective test used to decide whether D failed to act in a way which a reasonable person would have, or acts in a way a reasonable person would not e.g. Blyth v Birmingham Waterworks (1856)
Reasonable person is of average intelligence, self control, skill and experience, neither excessively cautious nor risk taking, if D acted as reasonable person did there is no breach e.g. Glasgow Corporation v Muir 1943
What is an example that proves the objectivity of the RPT?
Nettleship v Weston (1971)
Learner crashed on 3rd lesson, injuring instructor. Being a learner was not relevant as just fed to standard of reasonably competent driver
NO ALLOWANCE FOR INEXPERIENCE
What are relevant special characteristics of the D?
- Children: standard of care will be of reasonable child of that age e.g. Mullins v Richards (1998)
- Amateurs: judged compared to other reasonably skilled amateurs doing same task e.g. Wells v Cooper (1958)
- professionals/experts: judged to component experts in same field, must be substantial profession opinion that supports D course of action e.g. Bolam v Barnet Hospital (1957)
- doctors must ensure patients are fully informed of all risks involved in treatment and alternatives e.g. Montgomery v Lanarkshire Health Board (2015)
How are risk afford used in establishing breach of duty?
Risk factors can raise or lose standard of care expected e.g.
1. Probability of harm
2. Seriousness of potential harm
3. Cost and practicality of taking precautions
4. Potential benifits
5. Unknown risks
How does probability of harm affect breach of duty?
If probability of harm is low, D not expected to take as much care to guard against risk, if it’s high, a higher standard of care is expected
E.g. Bolton v Stone (1951) likelihood of cricket bout being hit out of ground and injuring passer/by was low so no breach of duty, already had reasonable precautions (5m fence)
E.g. Haley v LEB (1965) workmen propped hammer to warn of hole, blind man fell in hole, probability was high as blind people regularly use road, workmen should’ve done more
How does seriousness of potential harm affect the beach of duty?
If potential harm could be serious e.g. as claimant is vulnerable, standers of care raised, as reasonable person would do more
e.g. Paris v Stepney (1951) C was welder with no sight in one eye, employer should provide protective goggles as risk of going completely blind, so under a higher duty
How does cost and practicality of taking precautions affect the breach?
The court balances the size of the risk with the cost and effort to the D in guarding against it
E.g. Latimer v AEC Ltd (1953) C suffered injury after slipping on wet floor. Court decided D had taken sensible precautions by laying sawdust on floor to reduced effects of flooding. To eliminate risk, factory would have to be closed so disproportionate
How do potential benefits (social unity) effect the breach
The standard of care may be lower if there is a great public benefit to the activity I.e. in an emergency
E.g. Day v High Performance Sports (2003), C had frozen whilst climbing an indoor wal, had to be rescued. Rescuer caused C to fall and become injured, rescuing the climber outweighed risk so standard of care lowered
How does the matter of unknown risks affect breach?
If the risk of harm is not know, there cannot be a breach of duty
E.g. Roe v Minister of Health (1954). C paralysed by a contaminated anaesthetic. As it was unknown to medical experts that contamination could occur as it did, there was no breach
