Negligence breach of duty of care

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Breach of duty

3rd stage of the negligence enquiry. It is a question of fact, rather than law, and so had limited precedential value. It is an objective, reasonable person test and largely depends on common sense. 

Objective, reasonable person test:

Blyth v Birmingham Waterworks 1856-  'negligence is the omission to do something which a reasonable man... would do, or something which a prudent and reasonable man would not do.' 

Glasgow Corporation v Muir 1943- 'The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whos conduct is in question.' 

Nettleship v Weston 1971- 'The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill.' 

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Standard of reasonableness- Bolton v Stone 1951.

Factors to be considered when establishing breach:

  • gravity of potential harm
  • maginitude of the risk
  • practicalities/ cost of protecting against the risk
  • social utility
  • special situations (special characteristics of the defendant.) 

Gravity of potential harm-

Beckett v Newalls Insulation Co 1953- 'the law expects a man a great deal more care in carrying a pound of dynamite than a pound of butter.' 

'Thin skull' or 'eggshell skull' - special characteristics of claimant, have to take as they are. 

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Magnitude of the risk- includes the chance of the damage occuring and potential seriousness

Bolton v Stone 1951- 'the existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken'. (case where cricket balls were hit out of ground.

Miller v Jackson 1977- golf balls. 

Practicalities/cost of protecting against the risk- the magnitude of the risk versus the costs and trouble of eliminating it.

Latimer v AEC Ltd1953- only had to take reasonable precautions to make factory safe, no need to go to great expense to eliminate any possible risk.

Social utility/social benefit- Tomlinson v Congleton 2004- the benefit of having a public park outweighed the obvious dangers of the lake in it. Watt v Hertfordshire CC 1954 and Scout Association v Barnes 2010. 

Compensation Act 2006 S1- deterrent effect of potential liability: basically put this in statute. 

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Special situations (special characteristics of defendants)-

Children- Mullins v Richards 1998- there is no age of liability in tort but this factor comes through in breach. Blake v Galloway 2004 and Orchard v Lee 2009.

Illness and disability-Mansfield v Weetabix 1998

Sports- Woolridge v Sumner 1963, Condon v Basi 1985,  and Vowles v Evans 2003.

Professionals and special skills- Bolam v Friern Barnet Hospital 1957- 'the test is the standard of the ordinary skilled man exercising and professing to have that special skill.' Phillips v Whitely 1938 and Wilsher v Essex AHA 1988- lack of experience is not an excuse. 

Differences of professional opinion- Bolam v Friern Barnet Hospital 1957 'a doctor is not guilty of negligence if he has acted in accordance with a practise accepted as proper by a responsible body of medical men skilled in that particular art.' 

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Professionals: common bad practise? 

Edward Wong Finance v Johnson Stokes and Master 1984 -used a common and well used method but still was a breach. Thompson v Smith Ship repairers 1984 and Bolitho v City and Hackney Health Authority 1998- 'the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has logical basis' 'I emphasis... it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.' Marriott v West Midlands Health Authority 1999

Professionals: duty to explain- 

Chester v Afshar 2005- doctors have a duty to explain the risks even if they are very small. Sidaway v Bethlem Royal Hospital Governors 1984.

Professionals: change of knowledge- 

Roe v Ministry of Health 1954- You cannot be liable for risks that are not known at the time but that are later found. 

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