Topic 2 - Breach of duty Flashcards
(32 cards)
What is the standard of care?
The standard of care is the general principles used by the courts to determine the level of care expected from a defendant in a breach of duty case
It is established through the reasonable person standard.
What is the objective test in the context of standard of care?
The standard is objective, assessing how a reasonable person would act in similar circumstances
The court will consider the particular circumstances faced by the defendant.
What was stated by Lord Macmillan in Glasgow Corporation v Muir regarding the reasonable man?
The reasonable man is presumed to be free from both over-apprehension and over-confidence
This implies that the standard involves a subjective element based on the case’s circumstances.
What does the principle ‘act, not the actor’ mean?
The test should be based on the act performed rather than the experience level of the actor
This principle is illustrated in cases like Nettleship v Weston.
In Nettleship v Weston, how was the learner driver judged?
The learner driver was judged by the standard of an ordinarily competent driver, without allowance for her inexperience
The act of driving set the standard.
What was the outcome in Wilsher v Essex AHA regarding junior doctors?
A junior doctor was judged according to the act he was undertaking, not his level of inexperience
A uniform standard of care is required regardless of training level.
What does the professional standard entail?
The standard expected of professionals is based on what a reasonable professional in that field would have done
It differs from the general reasonable person standard.
What is the significance of Bolam v Friern Hospital Management Committee?
The case established that a professional is not required to possess the highest expert skill but must exercise ordinary skill in their profession
This principle applies to various professions, including solicitors.
How is the standard of care adjusted for children?
The standard required will be that of a reasonable child of the defendant’s age
This was illustrated in Mullin v Richards involving schoolgirls.
What was the decision in Roberts v Ramsbottom regarding the defendant’s stroke?
The defendant was judged against the standard of a reasonable competent driver and found negligent
He should have stopped driving when he realized his impairment.
What was concluded in Mansfield v Weetabix regarding the lorry driver?
The driver was not liable as he was unaware of his condition impairing his driving ability
He was judged by the standard of a reasonably competent driver unaware of impairment.
What factors do courts consider relevant to establishing a breach of duty?
Factors include:
* Likelihood of harm
* Magnitude of harm
* Practicality of precautions
* Benefit of D’s conduct
* Common practice
* ‘State of the art’ defence
* Sport
What is the significance of likelihood of harm in determining breach?
The more likely the harm, the more likely there will be a breach of duty
This was illustrated in Bolton v Stone.
How does magnitude of harm factor into breach assessment?
Greater care is required if the potential injury is serious compared to minor injuries
This was demonstrated in Paris v Stepney Borough Council.
What does practicality of precautions refer to?
It assesses how easily a risk could have been avoided and balances cost against severity of risk
This principle was seen in Latimer v AEC Ltd.
What is the benefit of D’s conduct in breach of duty cases?
The societal value of the defendant’s actions is considered, weighing the risks against potential benefits
An example is Watt v Hertfordshire County Council.
What does the Compensation Act 2006 state regarding desirable activities?
Courts may consider whether requiring particular steps to meet a standard of care might prevent desirable activities
This reflects the common law position.
What is the focus of the Social Action, Responsibility and Heroism Act 2015?
The Act requires courts to consider if actions were for societal benefit, responsible, or heroic in emergencies
This aims to promote socially beneficial conduct.
What is the relevance of common practice in breach cases?
If a defendant acted according to common practice, it may support their defense against liability
However, the court can rule the common practice itself as negligent.
What is the common practice defense in negligence cases?
If a defendant can show they acted in accordance with a practice usually followed by others in that field, it may favor the defendant in avoiding liability.
Courts can rule that the common practice itself is negligent, as seen in Re Herald of Free Enterprise.
What is the ‘state of the art’ defense?
This principle assesses the defendant’s actions against the knowledge and accepted practices at the time of the alleged breach.
Unforeseeable risks not anticipated do not constitute negligence.
What constitutes a breach of duty in sports participation according to Wooldridge v Sumner?
Nothing short of reckless disregard for the claimant’s safety constitutes a breach.
The case involved a spectator being injured.
What balancing factors are considered in determining a breach in The Wagon Mound (No 2)?
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefits from the defendant’s conduct
Who has the burden of proof in negligence cases?
The claimant must prove that the defendant breached the duty of care on the balance of probabilities.
This can be challenging, but s 11 of the Civil Evidence Act 1968 can assist claimants.
