Breach of Duty

Breach of Duty

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  • Created by: Laura
  • Created on: 11-06-11 13:27

The Reasonable Man Test

The Reasonable

Man Test

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The Reasonable Man Test

Blyth

frost that damaged a pipe flooding c's house was held to be beyond normal expectation so there was nothing that d could have reasonably done to prevent damage and so there was no liability.

Glasgow Corporation v Muir

the reasonable man is presumed not to be over-confident or over-apprehensive. this is an objective and impersonal test.

fair as there are no double standards BUT unfair if you are mentally/physically unable to reach that standard SO no deterrence?

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Determining the Standard of Care

 

 

Forseeability

of the Risk

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Determining the Standard of Care

There is no obligation to guard agaisnt risks which are unforseeable

Roe v Minister of Health

anesthetic stored in glass bottles was contaminated through hairline cracks in the glass which caused a patient to become paralysed. such a thing had never happened before so was unforseeable and there was no liability.

Walker v Northumberland CC

a senior social worker suffered another nervous breakdown because his employers took insufficient steps necessary to prevent this. the employers were liable as it was forseeable he would have another breakdown if they failed to take the reasonable steps to prevent it.

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Determining the Standard of Care

 

 

Magnitude of

the Risk

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Determining the Standard of Care

Where the magnitude of the risk is so small that it is unreasonable to expect it to be guarded against

Bolton v Stone

stone was hit by a cricket ball hit out of a ground with a 17ft high fence where the ball had only been hit out of the ground 6 times in 28 years. there was no liability as the cricket ground had done everything reasonable to guard against the risk which wasn't high in the first place.

Haley v London Electricity Board

a hammer was left to warn passers by of a hole that had been dug in a pavement and a blind man fell in, leaving him deaf. courts held that there was a significant proportion of blind people in London for precautions to be taken to protect them at a low cost.

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Determining the Standard of Care

 

 

Thin Skull

Rule

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Determining the Standard of Care

The defendant must take their victim as they find them

Paris v Stepney Borough Council

a mechanic blind in one eye was further blinded in the other eye when employers failed to provide the correct safety equipment. they were liable to the extent of causing him total blindness as his partial blindness meant they owed him a greater duty than normal.

Mattocks v Mann

c was unable to pay for repairs to her vehicle due to delay from insurer. she was able to recover the cost of a hire vehicle as it was forseeable she would hope the insurers would meet repair costs.

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Determining the Standard of Care

 

 

Social Utility of

the Activity

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Determining the Standard of Care

If there is justification for why d took the risk, they may be able to escape liability.

Watt v Hertfordshire CC

a jack for a fire brigade was not transported in its proper vehicle as the vehicle was elsewhere and the jack was needed for a car accident. when a fireman was injured there was no negligence as the emergency justified the risk.

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Determining the Standard of Care

 

 

Practicality of Precautions

& Common Practice

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Determining the Standard of Care

The reasonable man only has to do what is reasonable to avoid risk of harm

Latimer v AEC (Practicality of Precautions)

a flood in a factory mixed with oil and grease making the floor slippery and sawdist was not enough so Latimer slipped and was injured. HL felt everything reasonable had been done in circumstances as it was unreasonable to expect the factory to close.

Brown v Rolls Royce

an employee contracted dermatitis. the employers provided adequate washing facilities but not a barrier cream. they were not negligent because it couldn't be shown that it was guarenteed to prevent the condition.

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Different Classes of Defendant

 

 

Children

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Different Classes of Defendants

Mullin v Richards

two 15 year old girls wee fencing with rulers when one snapped and injured on girl in the eye. since such games were commonplace and wouldn't normally lead to injury, it was unforseeable to girls of that age so there was no negligence

AO2 - don't want to prevent children from playing games

Morales v Ecclestone

an 11 year old boy was knocked down in the road when he ran for his football. damages were reduced by 75% as children are less likely to be cautious.

AO2 - the standard of care is reduced for children

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Different Classes of Defendant

 

 

Motorists

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The same standard of care is expected of all motorists, regardless of age or experience.

Nettleship v Weston

A learner driver on her third lesson who injured her instructor when she crashed into a lamppost was liable despite her inexperience

AO2 - unfair as she can't drive to same standard as experienced driver BUT insurance?

Mansfield v Weetabix

A driver caused an accident when he lost control due to an unknown illness - he couldn't have reasonably known of infirmity so couldn't do anything about it.

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Different Classes of Defendant

 

 

Sports Players

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Different Classes of Defendant

Condon v Basi

ordinary standard of care applied when a footballer was injured in a dangerous tackle during an amateur football match, but courts said a much higher degree of care would be expected of a pro footballer.

Smolden v Whitworth

a referee in a rugby match involving inexperienced players was held to have fallen below the standard of care expected when a player was paralysed in a scrum he failed to control properly, although this judgement was only appropriate to inexperienced players.

Morrell v Owen

a disabled athlete suffered brain damage when hit in the head with a discus. the coaches had breached their duty of care which was higher due to disability.

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Different Classes of Defendant

 

 

People Lacking

Specialist Skills

 

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Different Classes of Defendant

A person carrying out a task requiring a specialist skill will be judged according to someone reasonably competent in that skill, but an amateur will not be expected to show the same level of skill.

Phillips v Whitely

a jeweller pierced ears with sterilised equipment and c contracted a blood disorder. she had taken all reasonable steps to avoid risk of harm and her standard was different to that of a surgeon so she was not liable.

Wells v Cooper

a tradesmen delivering fish was injured when a door handle fitted by householder came off in his hand. d was held to standard of reasonably competent carpenter and since the handle was fitted using screws a carpenter would use, there was no liability.

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Standard of Professionals

 

The Bolam

Test

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Standard of Professionals

The standard of care owed by professionals is not judged according to the reasonable man but is compared to other people exercising the same skill

Bolam v Frien Hospital Management

Bolam was injured she received electro-convulsive therapy but the doctor failed to provide relaxants of restraints. the court received evidence that different doctors took different views and restraints and relaxants. there was no negligence

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Standard of Professionals

 

 

Applying the

Bolam Test

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Standard of Professionals

Sidaway

Sidaway had a spinal op and her doctor informed her of less than 1% risk of something going wrong but didn't specify what. the op was carried out and she was paralysed but HL held that there was no negligence as the correct info was given.

Ryan v East London HA

a child suffered permanent spinal disability after an op following a misdiagnosis. there was a breach of duty as without the negligence misdiagnosis the child would have received the correct treatment.

Wilsher v Essex Area HA

a baby born prematurely with an oxygen deficiency suffered near blindness when a junior doctor administered excess oxygen through a catheter mistakenly inserted into an artery. HL rejected inexperience and held there was a breach.

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Standard of Professionals

 

 

Criticisms of the

Bolam Test

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Standard of Professionals

Allows professionals to set own standard so is measured subjectively according to other professionals brought to court

There is a danger professionals will close ranks to prevent another colleague being found to have breached their duty, which is unfair as ordinary people cannot do this

Practices that are only marginal may be accepted so there is a danger highly experimental practices will be legitimised without real credibility. 

Bolitho 

2 year old boy suffered brain damage and cardiac arrest when doctor failed to attend when his airways became blocked. HL rejected view that because certain medical opinion accpeted the practice of the doctor they were bound to accept it because of Bolam.  

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Omissions

 

 

Omissions

(Contractual Duty)

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Omissions

A breach of duty can be caused by acting below a standard of care but can alos be breached by failing to act.

Stansbie v Troman

a decorator was given a key to premises and asked to lock the door when he finished. He failed to do so and a theirf stole property from the house. the decorator was liable.

Doctors owe a duty to patients to act...

Barnett

A doctor failed to treat 3 nightwatchmen on New Years Eve complaining of nausea and stomach pains. a few hours later one man died of arsenic poisoning. there was a clear breach of duty but it was later shown the man would have died even with treatment.

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Omissions

 

 

Omissions

(Special Relationship)

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Omissions

Home Office v Dorset Yacht Co.

Borstal boys caused considerable damage when the escaped due to negligence of warders. Home Office liable for employee's failure to control the offenders.

Barret v MoD

employers liable for death of naval airman who became drunk of cheap mess alcohol that he fell into coma and drowned in own vomit. CA wouldn't impose liability for supply of alchohol but held D's were liable for failure to call doctor or look after him properly when he collapsed.

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Omissions

 

Omissions

Damage due to 3rd

party within their control

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Omissions

Haynes v Harwood

a driver who left his horsedrawn van unattended was liable when boys threw stones at the horses causing them to bolt and injure a policeman as he had failed to leave them in a secure state

Hudson v Ridge Manufacturing

an employee was injured following an incident involving an employee who was a known practical joker and employers failed to deal with incidents in the past so were liable.

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