Breach of Duty

is breach of duty a question of law or a question o fact?

fact -> claimant has the burden to prove on the balance of probabilities that the defendant was at fault

standard of care

the defendant must live up to the standard of reasonable care

where does the reasonable man test come from?

Blythe v Birmigham Waterworks Co

Reasonable man test

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

Nettlseship v Weston

facts: D was learning to drive and C was the instructor, D accelerated by mistake, ran into a lampost and broke C's knee

decision: The CoA held that the defendant must be judged by the standard of a reasonable, competent driver, not a reasonable, competent learner

are the personal characteristics of the defendant relevant?

The general rule is that we do not take into account the personal characteristics of the defendant because it is an objective, reasonable person test

Dunnage v Randall

facts: C sued D's estate after he was seriously injured when D, suffering from schizophrenia, set himself on fire on his property

decision: mental issues are not relevant to assessing the standard of care as it is an objective and reasonable person test, D had breached his DoC

Mansfield v Weetabix Ltd

facts: C's shop was damaged after a driver in a hypoglycaemic state crashed into it

decision: The standard would be a reasonably competent driver who is unaware of his condition, D did not know he had diabetes and there was no liabity here

Barnett v Chelsea and Kensington Hospital Management Committee

facts: C went to the hospital complaining of vomiting and the doctor tired and unwell sent him home and said he should see a GP, C died of arsenic poisoning

decision: reasonable person test was applied without taking into account the temporary disposition of D

Mullins v Richards

facts: 2 15 year olds were fencing with rulers when one shattered and went inside a girls eye

decision: The age of the defendant is relevant in assessing the standard of care, consider the thinking of an ordinary and prudent 15 year old

Phillips v Whitely (William) Ltd

facts: C got their ears pierced at a jeweller and got an infection

decision: The special skills of the defendant are included in the reasonable person standards

We do not expect a jeweller to have the same standards of hygiene as a doctor

Woolridge v Summer

facts: a spectator was injured when a ride and a horse went off course

decision: context is relevant, reasonable spectators expect the sport to be fast-moving and participants not consider the spectators

Clark v Elbanna

facts: D ran into C in a rugby match, injuring his spine. C did not have the ball so it was against the rules of rugby

decision: breach of rules of game ≠ breach of DoC, at trial, judge found recklessness so D was guilty

Blake v Galloway

facts: teenage boys were horseplaying when tree bark went into C's eye

decision: there needs to be something more than a lapse in skill for the defendant to breach DoC

Perry v Harris

facts: a child was injured on a bouncy castle hired for D's child's birthday

decision: context matters, standards of the reasonable parent rather than professional commercial operator

Roe v Minister of Health

facts: Roe was paralysed due to anaesthetics used in an operation being contaminated

decision: standard of care is what a reasonable person would have known in 1947, you cannot look at a 1947 accident with 1954 spectacles

Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church

facts: boy was SA by a priest in 1974 and another priest was aware and did nothing

decision: in 1974 a reasonable person would not have gone to police after 1 allegation but they would have spoken to the priest and put a stop to it

medical professionals

consider what a reasonable doctor may do

This can cause issues because reasonable doctors may have conflicting opinions on what should be done

Bolam v Friern Hospital Management Committee

for medical professionals, the est was whether what was done was in accordance with a practice accepted as proper by a responsible body of medical experts skilled in that particular art

If there are a number of different opinions, the court does not choose between them

Bolitho v City and Hackney HA

The Bolam test does not mean the defendant automatically wins just because he is acting in accordance with medical practice, and you can find others who would have done the same

The body of opinions must be responsible → they have to demonstrate that the opinion has a logical base, and experts have weighed risks and benefits

Montgomery v Lanarkshire Health Board

The correct decision, with respect to informing a patient, is that the doctor is under a duty to take reasonable care to make the patient aware of any material risks and reasonable alternative treatments

The test of materiality is assessed by what a reasonable person in the patient's position may think, or where the doctor should be aware that the particular patient attaches significance to the risk.

The reasonable doctor considers what a reasonable patient would want to know

Mulloch and others v Forth Valley Health Board

montgomery is limited the test show be whether there was negligence in failing to disclose alternative treatments

The narrowing down of all possible treatments to a reasonable alternative treatment is an exercise of clinical judgment

Wisher v Essex Area Health Authority

You cannot take inexperience into account, but you can take post into account

i.e: What would a reasonable nurse do? What would a reasonable junior doctor do?

Darlney v Croydon Health Services Trust

the receptionist was held to her post — what would a reasonable receptionist do rather than a reasonable medical professional

Phelps v Hillingdon BC

facts: An educational psychologist failed to diagnose dyslexia

decision: The court will not choose between competing schools of thought so long as a professional medical opinion would have done what the psychologist had done

Edward Wong Finance v Johnson Stokes & Master

facts: Legal professionals in Hong Kong used a different method of conveyancing

decision: The risk was so obvious that it should have been guarded against

There was a breach of a duty of care, even though it was a practice that was almost universally followed in Hong Kong

other externally defined standards

tort interacts with other standards, there is a question of whether the courts match the external standards

Thompson v Smiths Ship repairers

facts: The claimants all lost their hearing as a result of exposure to noise during their experience in shipyards. Before this, loss of hearing was accepted as a natural consequence of the job

decision: The standard of care is a reasonable and prudent employer taking positive thought for the safety of their employees

The employer must keep up to date, but the court must not blame him for not doing more than what others were

How can we determine whether someone has breached the objective, reasonable person standard?

Consider their risk taking, taking into account:

1. Likelihood of damage

2. Gravity of harm

3. Cost of precautions

4. Purpose/desirable activities

Bolton v Stone

facts: Stone was hit by a cricket ball, in the past 30 years the ball had been hit out of the ground 6x

decision: A reasonable person might decline to take steps where the probability of harm is very low

In this case, the risk was so low that a reasonable person would be justified in taking no steps to eliminate that risk

The Wagon Mound No 2

facts: D leaked oil onto water and it caught fire burning C's vessels, it was unlikley but foreseeable that this type of oil would catch fire

decision: A reasonable person ignores a small risk if they have a reason to do so

There was no such risk in this situation, and the small likelihood of harm was a breach of a duty of care — particularly because the oil spillage was also a criminal offence

Paris v Stepney BC

facts: C was blind in one eye and his employer did not give him goggles so he damaged his good eye

decision: For someone with two good eyes, it would not be unreasonable not to provide goggles

However, the gravity of the harm to this claimant was such that a reasonable employer would have provided goggles to protect his good eye

Latimer v Aec Ltd

facts: D's factory flooded so he put sawdust on the floor to make it less slippery but C still slipped. A trial judge held that D should have kept the factory closed

decision: The HoL held that it is relevant to take into account the serious financial consequences of closing the factory

Watt v Hertforshire CC

facts: C was carrying a lorry jack because the equipment used to carry the jack was unavailable and someone was trapped under the lorry, D braked suddenly and the jack fell on C, injuring him

decision: there was no liability for the negligence in failing to provide the equipment due to the life saving circumstances

King v Sussex Ambulance

facts: EMT worker carried an individual downstairs as their employer negligently failed to supply equipment

decision: no liability for negligence in failing to provide equipment for transport, as court took into account the life-saving purposes for which the risk was being taken

Tomlinson v Congleton BC

facts: D owned a park where 4 people drowned in the lake. There was a sign saying swimming was prohibited by D had not put a shoreline vegetation to prevent swimming. C dived in and broke his neck

decision: there was no breach, reasonable park owners would not do anything different due to the inherent social value of providing the lake, there is a free choice and adults have the free capacity to decide what risks to take

Compensation Act 2006 s1

A court considering a claim breach of duty may, in determining whether the defendant should have taken particular steps to meet a standard of care, have regard to whether a requirement to take those steps might

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

Royal Opera House Covent Garden Foundation v Goldscheider

facts: C was a viola player and suffered injury to his hearing ending his career, he relied on s1 of the Compensation Act

decision: The compensation act does not assist the defendant, as they should have protected others' hearing

Social Responsibility and Heroism Act s1

This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

Social Responsibility and Heroism Act s2

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

Social Responsibility and Heroism Act s3

The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others.

Social Responsibility and Heroism Act s4

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

what does res ispa loquitor mean

"The thing speaks for itself"

How does res ispa loquitor apply

If there is no evidence as to how the accident happened, the claimant may still win

Airport Authority v Western Air Ltd

facts: planes were stolen due to an issue with security

decision: there are 3 things to consider

1. an unexplained occurrence

2. That would not have ordinarily occurred without negligence

3. of the defendant