2. General Negligence: BREACH

Question 1

BREACH

Answer 1

Upon establishing that a DofC exists, move on to assess whether that DofC has been breached.

In order to establish that there has been a breach. must establish:

• THE STANDARD OF CARE, AND
• WHETHER D HAS FALLEN BELOW THAT STANDARD

Question 2

B: STANDARD OF CARE

Answer 2

There are THREE standards of care

• The R man standard
• the PROFESSIONAL standard
• the LOWER standard

In each case, the court will only consider the ACT, not the actor performing them (Wilsher v Essex).

Question 3

B: StofC - THE R MAN STANDARD

Answer 3

Applies to actions performed by ordinary people, those with no particular skill.

STANDARD: A “R competent” person in D’s circumstances.

• D’s actions judged OBJ (AC Billings and Sons v Riden) against the skill and actions of a hypothetical R man in the same circumstances (Blyth v Birmingham Waterworks).
• NO req. to do everything possible to prevent harm (Etheridge v East Sussex CC).
• NO allowance for training/inexperience (Nettleship v Weston)
• GR: persons performing an action won’t be judged by a higher OBJ standard than a hypothetical R person of their class could do so (Phillips v William Whiteley; Wells v Cooper) UNLESS they profess to have greater skill (Wimpey Construction v Poole) or it is a particularly complicated task.

Undertaking a task that an individual knows is beyond their ability may constitute evidence that they have been negligent (Greaves and Co v Baynham Meikle).

Medical conditions/illness will NOT affect the R standard (Roberts v Ramsbottom) UNLESS individual has knowledge of disability and the impairment it causes.

Persons in SPORT not liable for injuries on others provided that R care is taken to play by the game’s rules (Condon v Basi; Watson v Gray). If VERY reckless/careless then liable (Blake v Galloway).

Question 4

B: StofC - THE PROFESSIONAL STANDARD

Answer 4

Applies to professionals and those with particular skills.
STANDARD: a “R competent” professional in D’s circumstances.
- judged by the standard of a R competent member of their profession (Wilsher v Essex AHA).
- Courts recognise variation of skill levels within professions. (EG a GP would not be held to the same standard as brain surgeon)
- Trainees judged by standard of FULLY competent professionals in the relevant field. EG (Wilsher v Essex AHA)

“Common practice” or “industry standards” may be determined to be negligent themselves (Re Herald of Free Enterprise).

Question 5

B: StofC - THE LOWER STANDARD

Answer 5

Rarely used and applied to children.

STANDARD: a R competent person of D’s age
- EG: (Mullin v Richards).

Question 6

B: BREACH

Answer 6

To commit a breach of duty, D must have FALLEN BELOW the standard of care that has been established.

Courts consider multiple factors to determine whether, IN FACT, D has fallen below the standard:

• The MAGNITUDE of risk
• The SERIOUSNESS of potential injury
• social UTILITY
• the level and PRACTICALITY of precautions taken

Question 7

B: Breach - THE MAGNITUDE OF RISK

Answer 7

TEST: would a R man have foreseen the risk of harm and/or taken precautions against it

• the more likely D’s act is to cause harm, the more likely they are to breach the DofC.
• NO req for D to:
• – guard against very minor risks (Bolton v Stone cf. Pearson v Lightning)
• – guard against risks that were unknowable at the time of committing the tort (Roe v Minister of Health cf. Newman v SoS for Health).

Question 8

B: Breach - SERIOUSNESS OF POTENTIAL INJURY

Answer 8

D expected to take greater care where:

• there is a risk of causing SERIOUS injury (Watson v BBBC), or
• a PARTICULAR PERSON is at risk of serious injury (Paris v Stepney BC; Yachuk v Oliver Blais)

Question 9

B: Breach - SOCIAL UTILITY

Answer 9

an action taken less likely to breach standard if it BENEFITS THE PUBLIC in some way (Watt v Herts CC cf. Ward v London CC).
- The social utility of a scout game was not sufficient to justify the breach. (Scout Association v Barnes).

Question 10

B: Breach - LEVEL AND PRACTICALITY OF PRECAUTIONS TAKEN

Answer 10

D is required to take R precaution to prevent harm.
- D will NOT be req to take precautions that are unR to take, if if they are necessary to prevent harm (Latimer v AEC)

Precautions taken must be PROPORTIONATE to the risk of injury.

Checking a contractor’s insurance ONLY necessary where it has a bearing on the assessment of the contractor’s competence (Bottomley v Secretary and Members of Todmorden; Payling v Naylor)