Breach Of Duty/standard Of Care

Front 1

2 Stages

Back 1

1. Standard of Care

2. Have they fallen below it.

Front 2

General Rule

Back 2

The task being performed determines the standard.

Defendant must behave as a reasonable would in all the circumstances.

case:

Front 3

Blyth v Birmingham Waterworks (1856)

Back 3

Alderson B

"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 wouldn't do"

also:

Front 4

Vaughan v Menlove

Back 4

Haystack beside claimant's land, caught fire. Damaged the land. Defendant had ignored warnings this might happened 'because I'm insured'. Said had misjudged the risk. Court said liable - a reasonable person wouldn't have taken that risk.

Front 5

Reasonable man

Back 5

Hall v Brooklands Auto Racing: Greer LJ

'man in the Clapham Omnibus'

Front 6

"If one thinks in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A 'reasonable man' does not mean a paragon of circumspection."

Back 6

AC Billings & Sons v Riden

The Objective Standard

Front 7

Learner driver, judged by standard of ordinarily competent driver.

Driver has duty to passenger and every pedestrian and "must attain the same standard of care in relation to each."

Back 7

Nettleship v Weston:

Also - knowledge of the driver's inability/drunkenness does NOT take away the duty nor diminish the standard though may reduce damages on defence of contributory negligence.

Front 8

Teacher injured with a basketball while climbing stairs.

Back 8

Etheridge v East Sussex County Council:

Failed because the school had systems and procedures in place to protect against such an accident. i.e. Don't have to give absolute guarantee of safety.

Front 9

There is an element of subjectivity

Back 9

Glasgow v Muir, Lord Macmillan

Front 10

Professional Standard

Back 10

Standard is of a reasonable professional:

Bolam v Friern Hospital Management Committee:

Electro convulsive therapy - "ordinary skill of an ordinary competent man exercising that particular art."

Front 11

Lower Standard

Back 11

Children only. (Not adults - Nettleship)

McWhale v Watson

Child = factor but not any other characteristic (e.g. stupid/inexperience/)

Front 12

Defendant and claimant were 15. Plastic ruler in the eye. Court said schoolgirls couldn't reasonably have foreseen the risk.

Back 12

Mullin v Richards

Front 13

"The act and not the actor"

Back 13

Wilsher v Essex Area Health Authority

Front 14

Problem Cases

jeweller (piercing) not required to keep standard of a surgeon, just that of a jeweller...

Back 14

Philips v William Whiteley

Front 15

DIYer held to ordinary man standard because doing a DIYable task done by normal people. Not for e.g. electrical wiring/plumbing...

Back 15

Wells v Cooper

Front 16

Stage hypnotist, had to have the standard of a 'reasonably careful exponent of stage hypnotism'

Back 16

Gates v Mckenna

Front 17

Conversely, professionals claiming to possess higher skill is measured to standard of ORDINARY pros.

Back 17

Wimpey Construction UK v Poole

Front 18

if defendant takes on task they should KNOW is beyond them this may in itself be evidence of negligence

Back 18

Greaves & Co v Baynham Meikle & Partners

Front 19

Illness/Disability

Elderly man had stroke driving. Crashed, judged at reasonable competent driver standard. Because didn't have total loss of control/conciousness. Why didn't he stop when realised couldn't drive.

Back 19

Roberts v Ramsbottom

c.f.

Front 20

Lorry driver, hypoglycaemic state. Didn't know his driving was impaired. Therefore wasn't liable.

Back 20

Mansfield v Weetabix Ltd

Front 21

Sport, or even horseplay (Blake v Galloway) as long as they basically follow the rules etc (don't jump on his prostrate legs etc)

Back 21

Football

Condon v Basi - "The standard of care varies according to the level of expertise the player has. The Defendant was in breach of duty as the tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury which occurs outside the rules of the game."

Watson v Gray, the Times

Front 22

Establishing Breach of Duty

Back 22

have they met the standard?

Very case specific.

Did defendant act in accordance with normal practice?

case:

Front 23

Maynard v West Midlands Regional HA

Back 23

Doctor following standard practice adopted by a 'reasonable body of medical practitioners'

But:

Front 24

Common practice ITSELF may be considered negligent

Back 24

Re Herald of Free Enterprise, the Independent:

sailing ferry with bow doors open (morons, that's capitalism for you)

Front 25

Magnitude of Risk

Back 25

The more likely it is someone will get injured/damage, the more likely there will be a breach.

case:

Front 26

Bolton v Stone

Back 26

Claimant hit by stray cricket ball. Evidence showed six times in 30 years and there was a massive fence. i.e. was very unlikely = no breach.

c.f.

Front 27

Pearson v Lightning, the Times

Back 27

Golfer, ball bounced off tree and injured another. Very foreseeable that the claimant might get injured if shot went wrong. i.e. very high risk = liable.

Front 28

Seriousness of Injury

Back 28

If the possible injury would be serious = higher standard of care.

case:

Front 29

Paris v Stepney Borough Council

Back 29

Claimant had one good eye. Metal took it at work because he wasn't wearing goggles.

Though the risk was slight the consequences were huge = defendant = liable.

Front 30

Watson v British Boxing Board of Control

Back 30

Brain damage = very serious injury. The risk in this sport therefore defendants are liable.

Front 31

same where a claimant is less able to take care of self = greater standard/duty...

Back 31

Paris v Stepney Borough Council (metal 1 eye)

Yachuk v Oliver Blais Co Ltd:

sold petrol to a nine year old (FFS).

Front 32

Practicality of Precautions

Back 32

Latimer v AEC Ltd: slippy factory floor. Took precautions but the only sure fire way would've been to shut the factory, which would have been excessive considering how small the risk.

c.f.

Front 33

Bottomley v Secretary and Members of Todmorden Cricket Club, the Times

Back 33

Firework display independently contracted. Injury. Club hadn't checked contractor's safety plans nor public liability insurance and were therefore liable.

BECAUSE checking the insurance would have shown that the contractors were competent.

c.f.

Front 34

Payling v Naylor, the Times

Back 34

doorman (from security firm) injured claimant chucking him out. Defendant, (employer) didn't have to check insurance in this case because wouldn't have helped in assessing the competence of firm. (God knows why but there it is)

Front 35

The Utility or Potential Benefit of Defendant's Conduct

Back 35

i.e. trying to save someone

Watt v Hertfordshire County Council:

Fireman injured on way to rescue lady. Equipment not properly secured. Employers not liable, speed was of the essence and the mistake therefore acceptable.

c.f.

Front 36

Ward v London County Council

Back 36

Fire engine jumped a red light. Crash. Risk was too high to excuse. Therefore liable.

Front 37

Compensation Act 2006 s1

Back 37

make sure don't discourage future beneficial acts

Scout Association v Barnes

Front 38

Proof of Breach

Back 38

Burden is on the claimant to prove the defendant breached the duty of care, on BALANCE OF PROBABILITIES (i.e. more likely than not).

Smith v Kempson

Front 39

Civil Evidence Act 1968 s11

Back 39

If act leading to the injury led to a criminal conviction this works in the claimants favour then if presented in civil court the court will infer negligence. Defendant must DISPROVE it.

Front 40

Res Ipsa Loquitur

(WON'T come up)

Back 40

facts speak for themselves - no other possible explanation.

Scott v London and St Katherine Docks:

sacks of sugar.