Breach of Duty Flashcards
(29 cards)
2 stages in determining if there was a breach of duty
1) What is the standard of care (objective test)?
2) Has d fallen below the standard (subjective test)?
The standard of care
- general standard
- professional standard
- standard of children
The standard of care - general standard
D must behave as a reasonable person would in all circumstances - objective.
The standard of care - general standard - case
Blyth v Birmingham Waterworks
Nettleship v Weston - a beginner driver is judged with the same standard as a regular driver
Wisher v Essex - a trainee doctor is judged by the standard of a regular doctor
The standard of care - professional standard
Based on what the reasonably competent professional in that field would have done. If other professionals would agree with a certain act, even if they’re not the majority (a reasonable body of opinion), no DOC was owed. Behaviour must be able towithstand complete rarity or insanity.
The standard of care - professional standard - case
Bolam v Friern Hospital Management Committee - don’t need highest expert skill, it is sufficient if he excersises the ordinary skill of an ordinary competent man excerising skill in particular art.
The standard of care - standard of children
That of the reasonable child of d’s age carrying out that act.
The standard of care - standard of children - case
Mullin v Richards - contradicts Nettleship v Weston, but d was not a trainee, only a child. There is a lower standard of care there.
The standard of care - modifications
Where d may be suffering from an illness they were reasonably unaware of.
The standard of care - modifications - cases
Roberts v Ramsbottom - found negliegent, knew his ilness
Mansfield v Weetabix Ltd - did not know his ilness, standard of care adjusted.
Falling below the standard
All relevant risk factors need to be balanced to determine whether there has been a breach of duty:
- liklihood of harm
- magnitude of harm
- practicality of precautions
- benefit of d’s conduct
- ‘state of the art’ defence
Falling below the standard - liklihood of harm
The size of the risk - the more likely somebody is to get injured, the more likely there’ll be a breach.
Falling below the standard - liklihood of harm - cases
Bolton v Stone - very low risk = no breach
Haley v London Electricity Board - high risk = breach
Falling below the standard - magnitude of harm
Specific characteristics of c - if any injury would be serious, greater care is required than if the risk was of minor injury.
Falling below the standard - magnitude of harm - cases
Paris v Stepney Borough Council - the risk of injury was small, the consequences were significant.
Watsson v British Boxing Board of Control Ltd - the potential harm was serious, breach of duty existed.
Falling below the standard - practicality of precautions
The appropiate precautions need to be balanced against the severity of the risk. Proportionate responses must be done especially if they are low cost.
Falling below the standard - practicality of precautions - cases
Latimer v AEC Ltd - there was a proportionate response, enough to be not liable.
Falling below the standard - benefit of d’s conduct
Public benefit is weighed against any possible damage that may have resulted if the risk was taken.
Falling below the standard - benefit of d’s conduct - cases
Watt v Hertfordshire County Council - where life is at risk, abnormal risks may be justified, lower standard of care.
Falling below the standard - benefit of d’s conduct - acts
Compensation Act 2006 - s.1; allows courts to consider deterrent effect of potential loability on socially desirable activities
Social Action, Responsability and Heroism Act 2015 - when a court is considering whether a person has been negligent it must take in account whether a person was:
- acting for the benefit of society/any members
- demonstrated a predominantly responsible approach towards protecting the safety/interests of others
- the alledged negligence/breach occured when the person was acting heroically by intervening in an emergency to assist an individual in danger.
Falling below the standard - ‘state of the art’ defence
Unkown risks.
Falling below the standard - ‘state of the art’ defence - cases
Roe v Minister of Health - d’s actions must be assessed against the knowledge in profession and/or accepted practice at time of alledged breach.
Proof of Breach
The burden of proof is on c on the balance of probalilities that d breached the DOC.
Proof of Breach - process
Res ispa loquitur (the facts speak for themselves). The maxim is used where the only plausible explanation for c’s injures is d’s negligence. Helps cs who have difficulty proving exactly how an accident occured:
1) the thing causing damages was under the control of d or someone they are responsible for
2) the accident would not have happened without negligence
3) the cause of accident is unknown to c.
