Tort of Negligence - Breach of Duty - Flashcards in A Level and IB Law

What is the breach of duty?

looks to the conduct of the defendant

enquires whether the conduct of the defendant fell below the standard required by law

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What is standard of care - a reasonable person?

question of whether the defendant is in breach of duty is decided by an objective test
Requires defendant to meet the standard of a reasonable person
Objective test was set out in Vaughan v Menlove 1837

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Standard of care - reasonable person

What happened in the objective test case Vaughan v Menlove 1837?

hay stack would catch fire, he used his judgement and thought that it wouldnt catch fire, court said a reasonable person would see the risk and he failed to reach the standard

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What is meant by a reasonable person?

Objective test can be variable and may depend on the circumstances of the particular defendant or the situation

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What is the meaning of the reasonable person?

if defendant is a professional they are expected to meet the standard of a person within that profession

(Wilsher v Essex)

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Professionals - divided opinion

What happened in the case of Bolam v Friern 1957?

claimant was undergoing electric compulsion therapy, some doctors would give muscle relaxant drugs others would not of given less risk of muscle damage but greater risk of bone fracturers this doctor did give them and he suffered from a fractured bone, he

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Professionals - divided opinion

What is the Bolam test?

a professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... a man is not negligent, if he is acting in accordance with such a practice,

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What are non professionals?

What is the case?

A person outside a profession is not expected to meet the standard of a professional

Wells v Cooper 1958

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Non professionals

What happened in the case of Wells v Cooper 1958?

D fixed his door at home and used the wrong size screws, the door was at the top of the staircase, claimant came round and opened the door and he fell down the stairs, he was not liable as he was not expected to be a carpenter just a reasonable DIYer

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What is a trainee?

What case sets this out?

Trainees are required to meet the standard of a qualified person

Willsher v Essex 1988

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Trainee

What happened in the case of Willshire v Essex 1988?

junior doctor gave a premature baby too much oxygen as a result the baby was blind, there was a breach of duty as she should have been expected to reach the standard of a qualified doctor

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What is classed as learning drivers?

What is the case?

learner drivers are expected to meet the standard of a reasonable competent qualified driver

Nettleship v Weston 1971

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Learner Drivers

What happened in the case of Nettleship v Weston 1971?

learner driver hit a lamp post and injured drive and here it is expected that learners should meet a standard of a qualified driver

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What is classed as children?

What is the case included in this?

A child is not expected to meet the standard of a reasonable adult, but is judged by the standard of reasonable child of the same age

Mullin v Richards 1998

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Children

What happened in the case of Mullin v Richards 1998?

two 15 year old girls fighting with plastic rulers, one of the rulers shattered and plastic went into a girls eyes and she was blinded in that eye, here they said she was being injured on a reasonable 15 years old and there was no breach here

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Illness

What happens in the case of Roberts v Ramsbottom 1980?

defendant had a stroke whilst driving he hit a pedestrian, court said he had to meet the standard of a qualified driver and no account could be taken of his illness, claimant was entitled to compensation, pedestrian does not have insurance

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Illness

What happened in the case of Mansfield v Weetabix 1997?

lorry driver during course of short journey he had 2 to 3 minor incidents, he continued to drive and he drove into the claimants shops, he was suffering from hyperglycema and he was not aware, the court said he would be on the standard of a qualified driv

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What are the risk factors when applying the objective test?

Likelihood or harm

Seriousness of potential harm

Cost of prevention

Utility of the defendants conduct

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Likelihood of harm

What happened in the case of Bolton v Stone 1951?

defendant hit ball out of cricket field, claimant hit on head with ball, the cricket ground surrounded by fence that was 17ft high and ground was 10ft below ground level, cricket ground far from perimeter, ball only hit out 6 times in 30 years so likeliho

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Likelihood of harm

What happened in the case of Haley v London Electricity Board 1965?

doing some work on busy road in London, dug up pavement and there was a big hole, worksman went to lunch but did not put any cones or signs only placed a shovel over the hole, Mr Hayley was blind and fell into hole, lost his hearing as a result, electrici

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Seriousness of potential harm

What happened in the case of Paris v Stepney 1951?

claimant only had site in one eye, did some work involving some welding but it was low risk so did not need to provide googles, a spark did go into his good eye though causing him to go completely blind, because of seriousness of harm to claimant was that

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Seriousness of harm

What happened in the case of The Wagon Mound No2 1967?

involved ship that leaked oil, drifted past cotton field and cotton got caught up in oil, drifted in to Sydney harbour and sparks from welding led to fire which led to destruction of harbour, likilihood of harm was really low as oil was difficult to ignit

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Cost of prevention

What happened in the case of Latimer v AEC 1953?

factory floor became flooded, bad storm caused this and roof leaking, owner had down the best he could do to clear it up, mopped it up and sand and straw down, warning signs, claimant slipped on water he argued that d should have closed factory, court sai

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Utility of the defendants conduct

What happened in the case of Watt v Hertfordshire 1954?

women trapped under lorry, been in accident, fire brigade needed to transport heavy lorry jag to incident it did not fit so they told claimant to go on back of truck and hold it, he was crushed as it was not secure, liklihood of harm is great, seriousness

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What is the burden of proof in civil cases?

the burden is on the claimant to prove their case

it is not for the defendant to show that they are not liable

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What is the standard of proof in civil cases?

the claimant must prove their case on the balance of probabilities

this means that it must be more likely than not

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What is res ipsa loquitur?

What is the case with it?

D must be in a position of control

The event must be one which can not easily be explained

The burden of proof shifts to the defendant

Scott v London & St Katherine Docks

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Res Ipsa Loquitur

What happened in the case of Scott v London & St Katherine Docks ?

bags of sugar fell out of warehouse window, claimant was hit by one of the bags, claimant was outside so cant prove what cause them to fall out of the window, they applied res ipsa loquitur because the d was in position of control of the warehouse, act ca

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Tort of Negligence - Breach of Duty

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