PQ (Breach of Duty) Flashcards
How do you establish a breach of DOC?
- D must fall short of the standard of care expected of him
What is the relationship between the likelihood of harm and the std of care?
The greater the likelihood of D causing harm to C, the greater the std of care D is expected to meet. [Bolton v Stone] - cricket case, low likelihood of cricket ball being hit out
Contrast with Miller v Jackson where a breach was found and the cricket ball hit out for 8-9 times / season
what is used to measure the standard of care?
an objective standard of care is used
- an unskilled D is expected to meet the same standard of care of a reasonably competent x [Nettle-ship v Weston]
When is the expected standard of care set lower?
- Children [Mullins v Richard] - 15yo girls not held liable for causing blindness
- Unknown illness
[Mansfield v Weetabix] - no opportunity to discover the illness will arise
Note: known illness does not reduce std of care - [Roberts v Ramsbottom] - history of stoke did not change std of care as a driver
- C had a capacity to appreciate danger and self protect [Latimer v AEC Ltd] - oil spill where necessary precautions were taken.
HELD that there was no need to go to great expenses to eliminate any possible risk
When A owes B a duty to take reasonable steps to avoid x from happening how does the court deal with a failure to take the necessary precautions?
Court will balance the cost of taking precaution P against the magnitude of foreseeable risk that x would happen
What happens if there is a high risk - low cost situation?
When probability of foreseeable risk is high and low cost to take precaution, it would be negligent not to take precaution [Paris v Stepney] - no goggles provided to half blind man.
test: what precautions would an ordinary, reasonable and prudent employer take
What happens with a low risk - high cost situation?
when the probability of risk is low and the cost to take precaution is high, it will not be negligent to take such precautions.
Bolton v Stone - cricket case where ball only few out of ground a few times a season
Latimer v AEC - necessary precautions taken after an oil spill
What is the standard of care for professionals?
the standard of care for professionals is higher than that of an ordinary person and will be determined by the responsible body of opinion.
[Bolam v Friern Hospital] - C suffered from fractures after not being given relaxant drugs for electro convulsive therapy
What are the exceptions to the rule for standard of care for professionals?
- Expert opinion should not cancel out C’s autonomy
[Montgomery] - Women was not given notice of risk of disability to baby if delivered vaginally - if danger was so obvious, D does not have to put extra protection in place
[Darby v National Trust] - C drowned because no signs that pond cannot be swimmed in was put in.
