Tort of Negligence - breach of duty

                                                                  Breach of Duty

this is the fault element of negligence for example just because the defendant is a doctor and owes a duty of care to one of his patients and one of his patients die (damage) does not necessarily mean that they have been negligent. They must have done an act or omission that fell below the standard of care expected of him

                                                                 Standard of care

                   the standard expected is that of a 'reasonable man'

                                                  Blyth v Birmingham Waterworks

'the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do' – Baron Alderson

This standard of care does not mean there is an absolute duty to prevent harm or physical damage to others.

Characteristics of the defendant will only be taken in to account when it is:

• experts/professionals

who will be judged against the standards of an ordinary skilled person of that profession

Bolam v Friern Hospital

the claimant was undergoing electro convulsion therapy, the doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals whether to use the drugs or not as there was risks to the patient either way. Held: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art – which it was, some just didn’t agree and chose to use the drugs.

• Children

will be judged at a reasonable person of the defendants age

Mullin v Richards

two 15 year old girls were play fighting with plastic rules, one broke and a piece went into one of the girls eye, blinding her. Held: a reasonable 15 year old would not have foreseen the risk of this happening so would not be held liable

Learners are not held at a lesser standard than that of a person skilled in that area

Nettleship v Weston

the claimant was giving the defendant driving lessons, on one lesson the car struck a lamp post and the claimant was injured. Held: although the claimant was a learner driver, they are to be judged at the standard of a reasonable driver as they can cause the same amount of damage as an actual driver and should be held responsible for this

what is reasonable? Depends on these risk factors…