Tort Law - Breach of Duty Flashcards
What is the standard of care owed when someone is owed a DOC? Is it subjective or objective?
Does this standard ever change based on the “act” being performed?
D must act “as a prudent and reasonable man would”. This is an objective test based on the reasonable man, but it can change based on age or disability.
- Blyth v Birmingham Waterworks
Yes, the “act” is important - not the actor:
- trainee solicitors are held to the standard of the reasonable and competent NQ solicitor.
- learner drivers are held to the standard of the reasonable and competent qualified driver.
- trainee surgeons are held to the standard of the reasonable and competent surgeon.
What is the standard of care for drivers?
D is held to the standard of the ordinarily competent QUALIFIED driver. [Not the standard of a learner!]
- Nettleship v Weston
How is the standard of care affected by amateurs or unskilled people?
D must be held to the standard of a reasonably competent amateur [e.g. carpenter or builder]
- Wells v Cooper
How is the standard of care affected by skilled or professional people?
D must act like “the ordinary reasonable man exercising and professing to have that special skill”
“a man is not negligent… merely because there is a body of opinion who would take a contrary view.” [in doctor context]
- Bolam v Friern Hosptital
How does being a child affect the standard of care?
The girl was only expected to meet the standard of a reasonable 15 year old school girl not that of a reasonable man. She was found not to be in breach of duty.
- Mullin v Richards
If a defendant was to be able to show that he or she acted in accordance with usual or common practice, this would…
A - make it less likely that D breached his duty
B - show that D absolutely did not breach his duty
- A is correct.
Even if D followed the proper procedure or common practice, the common practice ITSELF could be negligent, or D still could have followed the procedure and done so negligently (fell below the standards of the reasonably and prudent man).
PRACTICALITY OF PRECAUTIONS
If you work in a hazardous environment (e.g. slipping in a factory), can it be enough to: (1) put up warning signs, (2) mop the floor, and (3) put sawdust on the floor to contain dampness?
Yes - this can be enough as, in Latimer v AEC, the reasonable and competent factory owner would do this.
- it would be impractical to close the entire factory for this reason.
LIKELIHOOD OF HARM
If the risk of harm is very low and the D takes all reasonable precautions, is it likely that negligence can be found?
If the risk of harm is so low that it is not foreseeable or significant, negligence is unlikely to be made out.
For example, having a high fence around a cricket ground that ensures that balls are very rarely hit out of the cricket club grounds. This was sufficient - C’s claim failed to establish breach (Bolton v Stone).
HOWEVER, consider the risk of workers digging a hole in the pavement. They took precautions for people with normal sight but a blind man fell down the hole and was injured. The court ruled there was BREACH because the risk, whilst low, was not so low that it should be ignored (Haley v LEB)
- Arguably, there could be a thin-skill rule argument here as well?
TRUE or FALSE - The courts must assess the defendant’s actions against the best practice (‘state of the art’ practice) in the particular field / profession concerned.
This is false. The D does not need to be as cautious as possible or extremely talented - just the standard of the reasonable and competent worker in accordance with accepted practices.
The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
MAGNITUDE OF HARM
In assessing whether there was a breach in the standard of care, how does the law treat the magnitude/size of the harm?
If a claimant is at the risk of greater harm, C’s special circumstances will require a higher standard of care.
- Paris v Stepney BC
(in this case, C was already blind in one eye. The fact no garage workers were given goggles was not a good enough excuse because C was at a far greater risk - going fully blind in both eyes).
How is the standard of care affected when there is a serious risk to life and limb?
Where there is a risk to life and limb, abnormal risks can SOMETIMES be justified (Watt v Hertfordshire CC).
This is not a blanket rule - as the fire authority was found liable for damage caused by negligently going through a red traffic light (Ward v L.C.C.).
If there is an unforeseeable risk, is it likely that there will be a breach in the standard of care?
Unforeseeable risks will not be regarded as negligent (Roe v MoH).
What about risks in sports - isn’t it true that taking part in sport means you CONSENT to ALL risks?
It is accepted that people in sports can take risks and participants consent to risk of injury.
There is a breach of duty where the reasonable participant (of D’s skill and competence) would have KNOWN that there was a SIGNIFICANT risk that what they were doing could result in serious injury.
If D takes an action which has no clear benefit - is it likely to impact the finding of breach by D?
Sometimes it is a balancing exercise to find breach of standard of care, but if there is no clear benefit to D’s conduct, this can be a factor IN FAVOUR of finding breach, e.g.:
Wagon Mound (no.2):
- YES breach because the risk of harm from the fire was very high (magnitude of harm)
- NO breach because it was unlikely and hard to foresee that the oil would be ignited by nearby engineers (likelihood of harm)
- YES breach because it was easy to avoid spilling the oil (practicality of precautions)
- YES breach because there was no clear benefit to D’s conduct.
What is the doctrine of “RES IPSA LOQUITUR”?
What are the conditions required for this doctrine to take effect?
This doctrine, if successful, flips the burden of proof onto the DEFENDANT - D must prove he was not negligent.
There are 3 requirements:
1. The thing causing the damage was under D’s control or someone’s control that D is responsible for;
2. The accident would not normally happen without negligence;
3. The cause of the accident is unknown to the Claimant, e.g. C has no direct evidence how this happened.
What is the standard of care of professional cases (medical and other professions)?
Bolam Test: D acts in accordance with “a practice accepted as proper by a responsible body of professional opinion”
(In medical cases, there can be CONFLICTING medical opinions but this does not necessarily mean breach/negligence).
- The Bolam test does NOT APPLY re. informing patients about the medical risks of a procedure or surgery (Montgomery case).
The “responsible body” does not need to represent the majority of opinion, merely an “responsible” body
- De Freitas case (in this case, 11 out of 1,000 leading surgeons supported D’s actions and constituted a “responsible body”).
When professionals, especially doctors, are in breach - what is the “state of the art” defence?
“State of the art” defence
- Doctors must follow advances in medicine literature, but aren’t required to know about obscure info (Gascoine v Sheridan, 1994).
- How recent the medical knowledge is will be relevant, e.g. doctors were not in breach as they could not be expected to know about a medical development 6 months ago (Crawford v Charing Cross Hospital, 1953). [This is likely to be decided differently today due to the Internet].
Can a professional (e.g. medic) be negligent is he followed a “common practice” established in the industry?
D can still be negligent even if he acted on a “common practice”. The practice also needs to be “REASONABLE, responsible or respectable…” The experts must have compared Risks vs Benefits and come to a “DEFENSIBLE CONCLUSION”.
- Bolitho case
What is the standard of care that all medical professionals must follow re. advising patients about the risk of a procedure?
Montgomery: Medical Professionals (not just doctors) are under a DOC that the patient is aware of ANY MATERIAL RISKS in a recommended treatment AND know about reasonable alternative treatments.
- A “material risk” is any risk that a reasonable person in the patient’s position is likely to attach significance to, or one that the doctor is, or should, reasonably be aware that a particular patient would attach significance to.
