Tort - Breach Of Duty Flashcards
What is the reasonable man test
It is an objective test
- did the D behave as a prudent and reasonable person would?
This test was set out in Blythe v Birmingham waterworks 1856 - if the D behaviour falls below the standard of a reasonable person then they are in breach of duty
What are the special characteristics of the D
The special characteristics have to be looked at - nettleship v Weston 1971 - shows that the defendant is compared with a person of average skill
Characteristics - professional
Bolam v fiern hospital 1957 - a doctor was not in breach of duty if he followed standard procedures supported by reasonable medical opinion
Characteristics - amateur/learner
Wells v cooper 1958 - D was a DIY enthusiast who fixed a handle to his back door.
His duty was to fit that handle to the same level as a reasonable competent DIY amateur
Leaner driver is compared with an average learner driver
If a person is professional the are compared to an average person in that same profession
Characteristics - child
The conduct of a child is compared to that expected of a reasonable child of the same age
Mullins v Richards 1998- two 15 year old girls playing with plastic rulers. One broke and blinded one of the girls. Court decided that a reasonable 15 year old would not have foreseen the harm
What are the four risk factors?
Probability of harm / degree of risk
Size of risk
Cost and practicality of taking precautions
Possible benefit of taking precautions
What is degree of risk/probability of harm
More care has to be taken with something that it quite likely to happen. It has to be foreseeable
Bolton v stone 1951- risk was foreseeable. Cricket ball went over a 17 foot fence in a cricket ground and hit someone.
If there is a known risk that steps must be taken to guard against it.
Haley v London electricity board 1965- the electricity board cut a hole and the failed to put any barriers around it, a blind person fell in the hole and was injured.
What is the size of the risk
The court will consider this. The more serious the likely consequences the more care needs to be taken.
Paris v Stepney 1951 - he was known to be blind in one eye, he was given the task that put his other eye at minor risk. They should have taken better care - provided goggles
What is cost and practicality of taking precautions
Is it practical to take precautions
The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk
Latimer v AEC ltd 1953- floor flooded and they put down sawdust - employee still slipped. Court held that the sawdust was enough
What are the possible benefits of the risk
Watt v Hertfordshire CC 1954- fireman was injured because equipment was being carried in a fire engine was adapted to suit this purpose, however it was an emergency- outweighed the gains in this instance
