Breach of Duty Negligence PDF

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Summary

Breach of DutyStructure Reasonability Test – Donoghue v Stevenson/Nettleship v Weston Courts Standard of Case: a) Probability of risk of Injury b) Serious of Injury c) Cost of Taking Precautions d) Social Value of Activity Is this a case of Res Ispa Loquitor? Setting the Standard Reasonable Test NO...

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Breach of Duty Structure 1. 2.

3.

Reasonability Test – Donoghue v Stevenson/Nettleship v Weston Courts Standard of Case: a) Probability of risk of Injury b) Serious of Injury c) Cost of Taking Precautions d) Social Value of Activity Is this a case of Res Ispa Loquitor?

Setting the Standard  

Reasonable Test NOT PERFECTION eg Bolton v Stone (Radcliffe) Idiosyncrasies are taken into account: a) Specialism: Bolam: must exercise skill as a competent man of that profession b) Inexperience: reasonable standard eg Nettleship v Weston (Denning) Mansfield v Weetabix; had blackouts when blood sugar level was low; were not expected to be known = NO BREACH Wilsher v Essex: BREACH – junior doctor is held to same standard as a competent doctor FB v Princess Alexandra Hospital: although there was complexity of tasks not reading patients history record is a breach as standard is expected from all doctors regardless of level. c) Age: Carmarthenshire (teacher left a 9 yr old child alone and they ran into road and died = BREACH; Orchard v Lee (child caused damage to a lunch-lady by running = simple accident and standard in young children is not the same = NO BREACH d) Dangerous sports/activities: Woolridge v Sumner (NO BREACH) as Lord Diplock, liability is based on a ‘reckless disregard of safety’; Blake v Galloway: NO BREACH = horseplay

Graduated specialisms are usually NOT liable   

Holt v Edge: GP Shakoor v Situ: alternative medical practitioner Philips v Whiteley: jeweller

Assessing Breach  

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PROBABILITY of the injury occurring?

GRAVITY of the injury were it to occur?

Bolton v Stone: Probability, Gravity, Cost, Social COST to implement Social/economic utility of D’s value precautionary steps? activity be severely Paris v Stepney: BREACH due to compromised/reduced? gravity/seriousness of injury was high and it was (LOSSES) cheap to buy goggles Watt v Hertfordshire: NO BREACH even though there was a high social cost Latimer v AEC: C worked in a factory and slipped on the floor. NO BREACH as there is no obligation to close factory = impractical/unreasonable. Reasonable precautions were already taken in minimising risk Tomlinson v Congleton: Local Authorities and other occupier of land are under no duty to incur significant financial and social loss to prevent an irresponsible minority from obvious danger = NO BREACH (Lord Hoffman and Hobhouse Witley Parish Council v Cavanagh: BREACH = Bus driver was injured when tree fell on bus and probability and gravity were high

Refer to a responsible body of professional opinion in the field (Bolam) – used in addition to Quadrant 

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Bolam: treatment led to injuries and could have been reduced if C had received medical treatment because doctors were divided on whether treatment should be given or not: “Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” Adam (fitter of windows): Applies in all professionals and beyond Date for assessing breach: Roe v Minister of Health: Date of breach is WHEN the breach was made NOT AFTER – Needs to be foreseeable at time of incident not after. Roe: NO BREACH as there was no way at time of breach, of knowing which batch was contaminated as it is not visible to human eye. They only knew there was a breach AFTER

Res Ipsa Loquitur = negligence is inferred not proven

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Meaning – the thing speaks for itself

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Used when C doesn’t know what really happened eg no proof but there was breach.

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Requirements (Scott v London and St Katherine Docks): a)

Accident was of a kind that occurs when there is a lack of care

b)

D had no control over the act that caused his injury

c)

D has no plausible alternative (non-negligent) explanation of what caused the accident to occur.

Rebuttal of res ipsa loquitur (Ratcliffe v Plymouth and Torbay): a)

D has something of non-negligent explanation eg a plausible explanation (argument will most likely fail as a result) OR

b)

D can prove exercise of reasonable care (If rebutted, then have to prove breach in the usual way)...