Breach of duty

Word document for breach of duty in negligence.

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BREACH OF DUTY
The general rule to breach of duty is the reasonable man test and this comes from BLYTHE v
BIRMINGHAM WATERWORKS, the case GLASGOW CORPORATION defined the reasonable man as the
ordinary man on the street. The state of the art defence applies as shown by ROE v MINISTER OF
HEALTH as it is unfair to judge D with hindsight.
There are two key questions as part of this test, a question of law which is mainly an objective
question as judges are asking "what is the required standard for the duty?" and judges decide this
based on previous precedents. The second question is a question of fact and this test is more
subjective as judges ask "has D reached the required standard?" and to do this judges take into
account all circumstances of the case.
As a question of law motorists are expected to exercise the same high standard and all motorists
owe duty to all motorists. After NETTLESHIP v WESTON this seemed harsh as the learner driver would
not be as experiences as others on the road but it was argued that as all motorists are insured then
liability should be found. The case of ROBERTS v RAMSBOTTOM found D negligent as he continued to
drive despite just previously having a stroke but the case of MASNFIELD v WEETABIX found D not
liable as he did not know if the condition.
For competitive sports those that play at the same level must be the same standard (CONDON v
BASI), referees do owe a duty to their players and as the D in SMOLDEN v WHITWORTH failed to stop
the scrums failing he was in breach of his duty. In WOOLDRIGE v SUMNER the D was not liable as it was
only an error of judgement.
For children it must be looked at if they are acting like reasonable children of that age as evidenced
by MULLIN v RICHARDS.
Doctors need to act in accordance with a practice accepted as proper by a reasonable body of
medical men in that art (BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE) and WHITEHOUSE v
JORDAN showed that an error of clinical judgement does not indicate negligence. The case of DE
FREITAS v O'BRIEN & CONOLLY said a reasonable body of medical opinion need not be large.
However if the accepted practice is irresponsible then D can still be liable as evidenced by RE HERALD
OF FREE ENTERPRISE.
As a question of fact there are for factors that must be considered. The first of which is likelihood of
harm. The case of BOLTON v STONE had a low likelihood but the case of HALEY v LONDON
ELECTRICITY BOARD it was likely because although the warning was adequate for sighted people it
was not enough for the blind.
The second factor is the seriousness of harm. In PARIS v STEPNEY BROUGH COUNCIL it was high
seriousness as C lost sight in both eyes but in the case of WITHERS v PERRY CHAIN it was low
seriousness and D had done all that was reasonable.
The third factor is the burden of taking precautions. In the case of LATIMER v AEC all that was
reasonable had been done by D and so were not liable.
The final factor is the benefit of D's activity. In the case of WATT v HERTFORDSHIRE CC it was held that
the wider public benefit of the fire service outweighed the likelihood of harm and seriousness of C's
injury. In the case of BARNES v SCOUT ASSOCIATION the benefits were weighed in balance but the
darkness significantly increased the risk so D was liable.

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