BREACH OF DUTY TORT

Question 1

2 elements of breach

Answer 1

• Set standard of care (imposed by law)
• Did D breach standard of care (question of fact)

Goldman v Hargrave

Question 2

General rule for standard of care?

Answer 2

Reasonable care - Bolton v Stone

Personal idiosyncracies of D, or circumstances may be relevant

Reasonable care is what its called nowadays

Question 3

Can perfection be a general standard of care?

Answer 3

Barrie v Cardiff CC -> **NO perfection is not the goal, or the requisite standard **

Mistakes will happen - extremely important to pitch standard of care cor

Question 4

Wilsher v Essex AHA

Answer 4

English law does not operate upon an average/overall/team standard of care

It depends on the specific individuals duty of care and their specific capabilities

• No breach in reasonable standard of care of misplacing cathometer
• Breach of reading X-Ray

Although he recieved good care before that does not matter. NO TEAM DUTY OF CARE

• Each act or omission by each doctor should be assessed by reasonable standard of care
• So if you make a bad breach after owing a good standard of care, you could still be liable

Question 5

Do the circumstances of the individual owing the duty of care affect the standard of care owed?

Answer 5

Glasgow Corporation v Muir - The law expects a defendant (D) to behave as a reasonably prudent person would in the same circumstances.

• Specialism
• Age
• Disability
• Inexperience

Question 6

Specialism - general standard of care case

Answer 6

Bolam - ordinary skill of an ordinary competent man exercising that particular art

1.) Scientific body
2.) Is it rational? Bolitho’

PERFECTION NOT REQUIRED - Cardin

Question 7

How will a standard of care for a tertiary specialist be held?

Answer 7

De Freitas

A tertiary specialist operating within a separate specialism would be judged based on the expected standard of care for their specific sub-specialty

set higher for defendants

Question 8

Standard of Care for GP

Answer 8

* Holt v Edge* - Standard of a reasonable GP (set no higher than that)

• C collapesd in show (pins needles, breathing difficulties)
• GP said to help u using X medicine but still died

Specialism

Question 9

Standard of care for a practitioner of alternative medicine

Answer 9

Shakoor v Situ

Specialism

Question 10

Standard of care case for voluntary first-aid service

Answer 10

Cattley v St John’s Ambulance Brigade

Specialism

Question 11

Types of Idiosyncracies

Answer 11

• Specialism
• Age
• Disability
• Inexperience

Question 12

Standard of care for those that offer medical type services

Answer 12

** Phillips v Whiteley (William) Ltd **

Jeweller pierced a customers ears, leading to infection

-> Does not need to meet doctors standard

Specialism

Question 13

Medical Receptionist

Answer 13

Darnley v Croydon Health Services NHS Trust

• Hospital receptionist gave misleading information to patient (waiting times)
• Patient suffered brain damage

Specialism

Question 14

Application of the Bolam standard across the professional spectrum, and beyond that context too

Answer 14

Carty v Croydon

Question 15

What is the typical standard of care for a very young person?

Answer 15

Carmarthenshire v Lewis -> Kid running out in front of lorry

**- No standard of care applicable to a kid **

Question 16

What about when a child is older? What is the standard of care then?

Answer 16

Mulin v Richards

Children SoC of an “ordinarily prudnet and reasonable” x-aged person in D’s position

Kid playing with a ruler accidentally stabs someone during of care

No breach -> standard of care met

Question 17

Standard of care for someone with a disability

Answer 17

• Where D knows the disability - ** C v Burcomb**

-> 70 year old knew if he did strenuous activity he would not be able to control himself

-> Changed a tire **(strenous) ** -> SoC of a reasonable driver = liable

• Where D does** not know ** the disability -> Mansfield v Weetabix

Car crash causing bad damgage* (due to his medical condition which he did not know)*

-> standard of care negligible = D not liable

Question 18

Where you cannot sue a kid due to lack of standard of care, who can you sue to claim damages?

Answer 18

Against the kindergarten/local authority -> Carmarthenshire CC v Lewis

Against the parent Ellis v Kelly

Question 19

General Rule for standard of care with inexperience

Answer 19

Divided into professional/non-professional context

Question 20

Standard of care for Professional duties

Answer 20

Inexperience does not suppress the standard of care
**
‘Wilsher rule’: Wilsher**

Question 21

Standard of Care for non-professional duties

Answer 21

**Inexperience D* = reasonably competent and experienced defendant

The ‘Nettleship rule’: Nettleship

Question 22

Relevant circumstances that affect that standard of care

Answer 22

Agony of the moment - WHERE a lot of uncontrolled activity

• *Good Samaritan Interventions *(Cattley)
• Emergency scenarios (Kent v Griffiths)
• Road Accidents (Lee)
• Sporting Scenarios (Begadon)

Question 23

If you have a pq where the characteristics do not come up what would you do?

Answer 23

Reasonable standard of one of that trade -> Apply Bolam

Question 24

2ND ELEMENT OF PROVING BREACH

Answer 24

• Breach of standard

Question 25

Defining Breach

Answer 25

***Blyth v Birmingham Waterworks Co*** - Just because something went wrong does not mean there is a breach of duty - Has to be a breach of what a reasonable person would do

Question 26

Preliminaries matters to check breach

Answer 26

1.) Requisite Foreseeability 2.) Date for Assessing Breach *(may not be necessary)* 3.) Distinguishing 'Inevitable Accidents' 4.) Distiguishing 'systemic breach' from 'vicarious liability'

Question 27

1st Preliminary Matter to check for breach

Answer 27

**Foreseeability ** - 'Real risk, and not just a mere possibility' -> ***Khan v Harrow*** - Narrower test -> ***Bolton v Stone*** - Absence, or occurrence, of previous incidents/accidents -> ***Cunningham v Rochdale MBC ***

Question 28

2nd Pre-Requisite of Breach of Duty

Answer 28

**Date for Assessing Breach** You assess the defendant’s (D’s) actions based on what they knew and reasonably could have known at the time ***Roe v Ministry of Health***

Question 29

3rd Pre-Requisite of the Breach of the standard of cure

Answer 29

**Distinguishing ‘inevitable accidents’ ** ***Knightley v Johns *** - *PC knightley was told to drive down the other end of a tunnel - inevitably crashing* - **NOT NEGLIGIBLE** If you cannot find anything that the claimant could have done something differently then there is no breach of standard | Only need to consider it is there in the PQ

Question 30

4th Pre-requisite of breach of standard

Answer 30

Where employee may be sued and employer held vicariously liable **Distinguishing between systemic breach and vicarious liability ** Both may be pleaded successfully against D, but note the distinction

Question 31

General Elements of establishing breach of duty

Answer 31

Could the D have done something different? **Depends on this:** 1.) Probability of injury occuring 2.) What would have been the cost to implement the precautionary steps 3.) What was the likely gravity of the injury, were it to occur? 4.) Would the social/economic utility of the D's activity be severely compromised/reduced | ***Bolton v Stone*** + IF ONE OF THESE DO NOT APPLY THEN NO BREACH

Question 32

Bolton v Stone | Was there a breach of duty?

Answer 32

Cricket ball hit Miss Stone – hit 100 yrds, cleared fence of cricket club – a similar sized ‘six’, 6 times in 30 yrs ***Precautionary Steps:*** - Erect higher fence? ***Very low probability *** - Close Cricket Club Down -> ***SOCIAL UTITLITY WOULD BE HIGHLY COMPROMISED*** NO BREACH

Question 33

Paris v Stepney BC | Duty of breach

Answer 33

One-eyed mechanic – chip of metal flew up and entered his good eye, blinding him **Precautionary Steps** – Supply goggles to mechanics during (1951) work tasks? ***Low probability BUT VERY CHEAP*** | Where the cost is low cite this case

Question 34

Watt v Hertfordshire

Answer 34

MV accident, and fire brigade asked to respond – lifting jack in fire brigade vehicle shifted when braking suddenly – hit one of firemen **Precautionary steps?** – waited until correct vehicle arrived back at depot? – further efforts to restrain jack used? **Probability - Medium to High (brake a lot) ** **Cheap (to fire brigade)* Social Utility highly compromised - should you really wait for an ambulance | NO BREACH

Question 35

Collins Williamson v Silverlink

Answer 35

Passenger mucking around on platform late at night, drunk – train left platform – too close, fell between train and platform – leg partially amputated Extremely Low probability + Very Costly DESPITE Very high gravity + Some Compromise REVISIT | ***NO SYSTEMIC BREACH***