breach evaluation

Question 1

personal characteristics

Answer 1

• allowing the defendants certain characteristics to be considered allows the law to be applied fairly to the defendant and offers more vulnerable claimants greater protection,
• shown in Nettleship v Weston, can be seen as unfair to treat her the same as an experience driver as she had only had a few lessons. However, experience or otherwise should not make the difference between someone receiving a pay out or not,
• the same can be said for examining the standard of care to professionals, as the standard of care should not be reduced due to lack of experience. for example, a junior doctor must exercise the same level of skill as an experienced doctor,

Question 2

size of the risk

Answer 2

• when considering the size of the risk and the practicality of removing it altogether it means in certain cases it will never be too onerous for the defendant,
• in Bolton v Stone, it was obvious the cricked club had done everything they could to protect passers-by from being hit on the head by a cricket ball that it effectively made the risk of it ever happening negligible. However, this was unfair on Miss Stone who received no compensation,
• things have now changed due to insurance companies having to settle claims, now in fact the cricked club would now be liable as they would have been required to do even more to protect the claimant,

Question 3

precautions

Answer 3

• health and safety is paramount in most industries and more barriers are in place to protect the public/passers-by from injury. the courts will look at whether all appropriate precautions have been taken by the defendant and will balance this against the cost and effort of taking those precautions,
• this can be seen in the case of Latimer v AEC where it was considered reasonable for the factory to lay sawdust down where a flood had occurred in the factory rather than sending workers home and closing it, which would cost money to all concerned. Again, this case would now be decided differently as employers are expected to offer even greater protection,
• this was especially apparent in he recent covid climate where requirements were placed on employers to protect all employees during the pandemic,

Question 4

common practice and knowledge of the time

Answer 4

• it is fair that defendants are judged against what is common practice and the knowledge of the time, especially in medical and scientific areas, where developments can happen quickly,
• in Roe v Minister of Health, it would not have been fair for the defendant to be liable for contamination that had not been discovered yet, but it would be expected that lessons are learned so that it does not happen again,
• this was seen recently during the pandemic - in the early days, mistakes were made but doctors learned quickly during the first wave and treatment was better for the second wave,

Question 5

reform of negligence

Answer 5

• a reform to the current system would be a state-run benefit scheme which pays out compensation to all victims without the need to prove how or why the accident happened,
• could be funded through general taxation or a levy on motorists or employers,
• benefit is there would be no need for insurance companies to be involved or delay the claims,
• some countries already have this system - e.g. Canada has a state-run system that covers accidents at work and employers pay a contribution based on the dangers in their work place,

Question 6

AO1

Answer 6

• to establish whether d has breached duty of care, they will be judged against the standard of care of the reasonable man carrying out the same activity -> Blyth v Birmingham Waterworks,
• children -> judged against the standard of reasonable children of the same age -> Mullins v Richards,
• experts -> judged against standard of care of a ‘reasonable body of experts in the same field’ Bolam,
• learners -> judged against standard of reasonable competent qualified people -> Nettleship,
• court will weigh 4 risk factors:
  . degree of risk ; if harm is likely the court will expect d to take greater care to eliminate the risk (Bolton v Stone),
  . potential seriousness of harm ; where there is potential for serious harm they will expect d to take grater care,
  . practicality of taking precautions ; court considers how easy it was in terms of cost and effort for the d to eliminate the risk (Latimer),
  . social usefulness of the activity ; if the d is doing a socially useful activity the court will allow him to take greater risks,