Breach of Duty - Negligence
- Created by: cephillips
- Created on: 10-05-14 13:43
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- Breach of Duty in Negligence
- Did the Defendant meet the standard of the "Reasonable Person"? Blyth v B'ham Waterworks [1856]
- Objective Standard
- Doesn't have to reflect average bheaviour
- Don't have to be at fault morally, only legally - Denning in Nettleship
- Relevant Factors:
- 1. Foreseeability of Harm
- Roe v MoH [1954]
- 2. Magnitude of Risk
- Likelihood of harm (Bolton v Stone [1952]) and Seriousness of Consequences (Stepney BC v Paris [1950])
- 3. Burden of Taking Precautions
- The easier/cheaper, higher expectation of taking - The Wagon Mound No 2 [1967]
- 4. Utility of Conduct
- Less liability if harm caused whilst trying to be of use to society - Watt v HertfordshireCC [1954] and S 11 Comp Act 2oo6
- 5. Common Practice
- Failure to conform can be strong evidence be C must show it is the cause - Browns v Rolls Royce [1965]
- 1. Foreseeability of Harm
- Learned Hand Test - US v Carrol Towing Co. [1925]
- Liability: B < P x L
- Not Liable: B > P x L
- B - Burden of Precautions, P - Probability of harm arising, L - Loss which could occur
- Special Standards of Care
- Children - "standard of conduct from the reasonable child" - Mullins v Richards [1998]
- Leaner Drivers - same as qualified ones - Nettleship v Weston [1971]
- Emergencies - lowers standard expected - Ng Chun Pui v Lee Chuen Tat [1988]
- Sports
- Only liable if "reckless" but expected to go all out for win - Woolridge v Sumner [1963]
- Referees must safely inforce rules - Vowles v Evans [2003]
- Breaking rules of a sport is not conclusive evidence of breach - Caldwell v Maguire [2002]
- Professional Standard of Care
- Bolam Test
- 1. Where D claims to have a special skill, he is tested to the standard of the "reasonable man with that special skill"
- 2. If actions are in line with standards practice/used by other members of that profession there is no liability
- Bolam v Friern Hospital Management Committee [1957]
- Bolitho [1998] states use of technique must be based on reasonable grounds/logical basis
- Standard ecpected is that of the man in that post - junior doctors same standard as consultants - Wilsher v Essex HA [1988]
- "Informed Consent" cases - Dr must disclosure all risks to which the patient will attach significance - Sidaway v BEthlem Royl Hospital [1985]
- Bolam Test
- Proving Breach
- Criminal Conviction for same offence proves breach - S 11 Criminal Evidence Act 1968 & Wauchope v Mordecai [1970]
- Res Ipsa Locitur - It speaks for itself - Court can draw inferences if C cannot prove why something happened
- Scott v London and St Katherine Docks [1865]
- 1. Occurrence would not occur normally, 2. D must have had control of thing causing harm and 3. Cause of occurrence must be unknown to C
- Scott v London and St Katherine Docks [1865]
- Did the Defendant meet the standard of the "Reasonable Person"? Blyth v B'ham Waterworks [1856]
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