Breach of Duty - Negligence

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  • Breach of Duty in Negligence
    • Did the Defendant meet the standard of the "Reasonable Person"? Blyth v B'ham Waterworks [1856]
      • Objective Standard
      • Doesn't have to reflect average bheaviour
      • Don't have to be at fault morally, only legally - Denning in Nettleship
    • Relevant Factors:
      • 1. Foreseeability of Harm
        • Roe v MoH [1954]
      • 2. Magnitude of Risk
        • Likelihood of harm (Bolton v Stone [1952]) and Seriousness of Consequences (Stepney BC v Paris [1950])
      • 3. Burden of Taking Precautions
        • The easier/cheaper, higher expectation of taking - The Wagon Mound No 2 [1967]
      • 4. Utility of Conduct
        • Less liability if harm caused whilst trying to be of use to society - Watt v HertfordshireCC [1954] and S 11 Comp Act 2oo6
      • 5. Common Practice
        • Failure to conform can be strong evidence be C must show it is the cause - Browns v Rolls Royce [1965]
    • Learned Hand Test - US v Carrol Towing Co. [1925]
      • Liability: B < P x L
      • Not Liable: B > P x L
      • B - Burden of Precautions, P - Probability of harm arising, L - Loss which could occur
    • Special Standards of Care
      • Children - "standard of conduct from the reasonable child" - Mullins v Richards [1998]
      • Leaner Drivers - same as qualified ones - Nettleship v Weston [1971]
      • Emergencies - lowers standard expected - Ng Chun Pui v Lee Chuen Tat [1988]
      • Sports
        • Only liable if "reckless" but expected to go all out for win - Woolridge v Sumner [1963]
        • Referees must safely inforce rules - Vowles v Evans [2003]
        • Breaking rules of a sport is not conclusive evidence of breach - Caldwell v Maguire [2002]
    • Professional Standard of Care
      • Bolam Test
        • 1. Where D claims to have a special skill, he is tested to the standard of the "reasonable man with that special skill"
        • 2. If actions are in line with standards practice/used by other members of that profession there is no liability
        • Bolam v Friern Hospital Management Committee [1957]
        • Bolitho [1998] states use of technique must be based on reasonable grounds/logical basis
      • Standard ecpected is that of the man in that post - junior doctors same standard as consultants - Wilsher v Essex HA [1988]
      • "Informed Consent" cases - Dr must disclosure all risks to which the patient will attach significance - Sidaway v BEthlem Royl Hospital [1985]
    • Proving Breach
      • Criminal Conviction for same offence proves breach - S 11 Criminal Evidence Act 1968 & Wauchope v Mordecai [1970]
      • Res Ipsa Locitur - It speaks for itself - Court can draw inferences if C cannot prove why something happened
        • Scott v London and St Katherine Docks [1865]
          • 1. Occurrence would not occur normally, 2. D must have had control of thing causing harm and 3. Cause of occurrence must be unknown to C


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