Tort Law - Breach of duty

Question 1

What are the two stages in determining whether there has been a breach of duty? (2)

Answer 1

Stage one is the standard of care of the defendant must be established and this is a question of law. Stage two is examining all the facts and circumstances to see if the defendant has fallen below the standard of care and then breached the duty, this is a question of a fact.

Question 2

What is the general rule in terms of standard of care and the key case? (1)

Answer 2

A defendant must behave as a reasonable person would in all circumstances, Blyth V Birmingham Waterworks 1856.

Question 3

What is the standard of care set by? (1)

Answer 3

Act not the actor.

Question 4

What is the key case on act not actor? (1)

Answer 4

Bolam V Friern Hospital Management Commitee 1957.

Question 5

What other key cases establish act not actor? (3)

Answer 5

Nettleship V Weston 1971, Wilsher V Essex 1986, Condon V Basi 1985.

Question 6

What is the rule in terms of professionals and standard of care? (2)

Answer 6

Where the act being carried out is one which would ordinarily be carried out by a professional, the standard is based on what the reasonable professional in that field would have done and there is no allowance for the defendant being junior / inexperienced in that field.

Question 7

What is the rule in terms of children and standard of care? (1)

Answer 7

Children need only reach the standard of a reasonable child of their age.

Question 8

What is the key case in terms of children and standard of care? (1)

Answer 8

Mullin V Richards 1998.

Question 9

What is the rule in terms of illness / disability and standard of care and the key case? (2)

Answer 9

The standard required may be adjusted in certain circumstances to take into account sudden illness / disability which the defendant was reasonably aware of , Roberts V Ramsbottom 1980.

Question 10

What circumstances will the court consider when establishing a breach of duty? (7)

Answer 10

1. Likelihood of harm.
2. Magnitude of harm.
3. Practicality of precautions.
4. Any benefit of the defendant’s conduct.
5. Common practice.
6. State of the art at the time of breach.
7. Special rules in relation to sport.

Question 11

When is there more likely to be a breach? (1)

Answer 11

When someone is more likely to be injured.

Question 12

What are the two key cases in terms of likelihood of harm? (2)

Answer 12

Bolton V Stone 1951 and Haley V London Electricity Board 1964.

Question 13

What is meant by magnitude of harm? (1)

Answer 13

If an injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.

Question 14

What are the two key cases in relation to magnitude of harm? (2)

Answer 14

Paris V Stepney Borough Council 1951 and Watson V British Boxing Board of Control Ltd 2001.

Question 15

What is meant by practicality of precautions? (2)

Answer 15

It is necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precaution against the severity of the risk. To satisfy the duty of care the defendant need only act reasonably.

Question 16

What is the key case in relation to practicality of precautions? (1)

Answer 16

Latimer V AEC Ltd 1953.

Question 17

What is meant by the benefit of the defendant’s conduct? (1)

Answer 17

The value to society of the defendant’s activity is a factor to consider e.g. if taken a risk to preserve or protect life, limb or property.

Question 18

What is the key case in relation to benefit of the defendant’s conduct? (1)

Answer 18

Watt V Hertfordshire County Council 1954.

Question 19

What does the Compensation Act 2006 S1 allow? (1)

Answer 19

The courts to consider in determining whether the defendant should have taken particular steps to meet a standard of care.

Question 20

What does the Social action, Responsibility and Heroism Act 2015 require? (1)

Answer 20

That a court considering whether a person has been negligent must take into account whether the person was acting for the benefit of society, demonstrated a responsible approach towards protecting safety and whether the negligence occurred when the person was acting heroically.

Question 21

What is meant by state of the art defence? (1)

Answer 21

The courts must assess the defendant’s actions against the knowledge in the profession and / or accepted practice at the time of the breach.

Question 22

What is the key case in relation to state of the art defence? (1)

Answer 22

Roe V Minister of Health 1954.

Question 23

What does the Civil Evidence Act 1956 S11 state? (1)

Answer 23

If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, the claimant may be helped by relying on any conviction that results if the conviction is evidence of careless conduct.

Question 24

What may the claimant be helped by when proving breach? (2)

Answer 24

A relevant criminal conviction or in limited circumstances maxim res ipsa loquitur.

Question 25

What is maxim res ipsa loquitur? (2)

Answer 25

Facts speak for themselves. Used where the only plausible explanation for the claimant’s injuries is negligence by the defendant and it helps claimants who have difficulty proving exactly how an accident occurred.

Question 26

When the professional standard of care has been set, what is the starting point for determining whether the defendant has fallen below this standard? (1)

Answer 26

Bolam test.

Question 27

When does the Bolam test not apply? (1)

Answer 27

When considering if a medical professional is in breach of duty for failure to warn of risks and procedures.

Question 28

What is the key case in relation to medical professionals and failure to advise in relation to risks? (1)

Answer 28

Montgomery V Lanarkshire Health Board 2015.

Question 29

What did Bolam establish? (2)

Answer 29

Professionals are not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular but the court can find a professional negligent if it concludes practice accepted as proper does not withstand logical analysis.

Question 30

What duty are medical professionals under? (1)

Answer 30

To take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative / variant treatments.

Question 31

What is the key case in relation to when we can / cannot use the Bolam test in relation to medical professionals and breach of duty? (1)

Answer 31

Mcculloh & Others V Forth Valley Heath 2023.