Breach of duty
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- Created by: Nikki
- Created on: 09-04-15 11:13
The basics
Learned Hand J rule -- United States v Carroll Towing Co (1947)
- probability it will happen
- gravity of resulting injury
- burden of adequate protection
- B<PL
- doesn't always apply -- costs of adequate protection higher than cost of paying off victims but still not acceptable to allow this to happen
No single rule for breach of duty
- objectivity -- objective standard of care -- personal best not necessarily sufficient
- balancing -- Learned Hand formula
- common practice
- public powers -- public bodies with statutory duties
- personal fault
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Objectivity (1)
The rule
- doing personal best isn't sufficient to discharge duty of care owed by D to C
- established in Vaughan v Menlove (1837)
- basis of D having done his best would be too vague
- CA in Nettleship v Weston
Justifications
- practical justification -- uncertainty, unpredictability, impossibility of arriving at fair and consistent decisions
- principled justifications
- (1) where Professional voluntarily assumed responsibility to Client - fair to hold P to standard she indicated to C she could be expected to live up to
- (2) Inexpert and Expert - if Inexpert owed lesser degree of care then this would be unfair -- seems to punish Expert for expertise and reward Inexpert for his inexperience
- (3) Inexpert and Other People owe A duty of care - if Inexpert owed lesser duty - seem to punish OP for not being I, and reward I for not being like OP
- (4) if D could avoid exposing others to harm by not acting, then not unreasonable to hold him to high duty of care if D does choose to act, even if D is incapable of meeting that standard of care -- D did not have to act
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Objectivity (2)
Application of the rule
- No account of D's personal circumstances but not inhumane -- not superhuman levels
- Two features of application demonstrate this:
- difference in stressful situations
- Surtees v Kingston-upon-Thames BC (1991) -- mothers making mistakes
- Wilsher v Essex Area Health Authority (1987) -- doctors & nurses making mistakes
- players in a sports game - unless reckless disregard for other's safety
- if D isn't responsible for what his body is doing, will not have breached duty merely by failing to bring his body under control
- Mansfield v Weetabix (1998)
- difference in stressful situations
Exceptions to the rule
- assumption of responsibility -- requires standard of care A indicated to B she could be relied upon to apply in dealing with B
- duties to act - A must do subjective best given circumstances
- landowners owes neighbours duty to take reasonable steps to deal with naturally-occuring hazard arising on his land -- subjective best
- police in protecting prisoner from killing himself in police custody -- subjective best
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Balancing (1)
The rule
- high risk - low cost --> negligent not to take precaution
- Paris v Stepney BC
- low risk - high cost --> not negligent to allow risk to stand
- Bolton v Stone
- Latimer v AEC
- Tomlinson v Congleton BC (2004)
- low risk - low cost --> marginal --> depend on fine assessment of magnitude of risk and cost of precaution
- Scout Association v Barnes (2010)
- Harris v Perry (2009)
Exception to the rule --> possible exception = high risk - high cost
- improper for D not to do anything about risk on ground of cost
- violate separateness of persons --> harming A cannot be justified simply by reference to benefit that B will obtain
- Miller v Jackson
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Balancing (2)
s1 of Compensation Act 2006
- restates balancing approach in first 3 types of case
- might apply to high risk - high cost cases too
- but if it does it merely says 'may...have regard to' the social cost --> court can choose not to take that sort of cost into account without violating the act
- strengthens view of Denning --> exposing individuals to even quite severe risks of harm might be justified in name of public interest
- unlikely courts will extend s1 to situations where only private interests are at stake
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Common Practice
The Rule
- fact that people might generally be expected to act in a particular way does not establish that acting that way is reasonable
- no real authority
Exception to the rule
- professionals --> courts will be guided by opinions of professionals in the field
- Bolam test
- Maynard v West Midlands Regional Health Authority (1984) (test in action)
Exception to the exception
- where body of opinion is not 'responsible, reasonable, and respectable' because it is 'not capable of withstanding logical analysis'
- Bolitho v City and Hackney Health Authority
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Proof
The rule
- C must prove that D breached duty of care owed to her
- Knight v Fellick
Reps ipsa loquitur
- C can shift burden of proof to D if facts of case are such that most natural explanation of what happened is that D was careless --> 'the thing speaks for itself'
- applied in following types of cases
- D performed minor operation on C's hand and after operaton C lost use of hand
- C was working in D's factory and an electrical panel fell on his head
- C was injured when coach driven by D suddenly veered across road into C's path
- D cleaned a suit belonging to C and C suddenly developed dermatitis on wearing that suit again
Genuine exceptions
- Bailment
- Criminal conviction
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