Topic 6 - BOD ( Concept of risk) PDF

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The concept of risk  there must be balance between the degree or magnitude of the risk, the level of precaution, responsibility on the part of df.  if the damage is not foreseeable, the df is not required to take steps to prevent injury, but required to take precautionary measures against any probable damage or injury.  In determine the reasonableness of the df’s conduct, reasonable foreseeability of damage to the pl must be considered.  conduct of reasonable man is subject to the concept of risk, which knows as risk test.  Fardon v Harcourt Rivington: Lord Dunedin stated that possibility of the danger is reasonably apparent then to take no precaution is negligence will possibility of mere danger which won’t come to mind of reasonable man, no negligence for not taking precautionary measures.  Four factors to determine concept of risk 1. Magnitude of risk 2. Practicability or cost of precautions to the defendant 3. Utility of act of the df 4. General and approved practice 1. Magnitude of risk  Degree of car of df must weighed against the magnitude of risk created by df.  Two factors o Probability of the injury occurring  Bolton v Stone: the pl was hit by cricket ball which came out from the cricket ground. This kind of situation have taken place before but rarely. The club is not liable for allowing cricket to play without extra precautions. Hence, although a reasonable man may foresee many risks, life would be inconvenient if precautionary measures are taken for all foreseeable risks. A must only take reasonable steps against risk.  Miller v Jackson: Cricket ball came from the ground frequently and damaged the property several times. the court held that eventho the fence is high, risk of injury is high and df could liable each time the ball damaged pl’s property, The precautionary measures adopted by the df was insufficient to overcome the risk of injury to the pl.  Hilder v Associated Portland Cement Manufacturers Ltd: Pl was riding motorcycle and killed due to football went onto highway. Occupier of the land is liable for letting allowing children playing on his land negligently and carelessly.

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Hence, the likelihood of injury passer-by much greater than in Bolton’s case  Susan Cheah v Mayban Finance: Burglars break-in df’s premises through tunnel in their underground and enter client’s safe- deposit boxes. The df is liable for acting below its reasonable standard of care by not installing an advanced security in their premises. Seriousness of injury  seriousness or gravity of injury risked to the pl as a result of the df’s conduct.  Paris v Stepney Borough Council: Pl who was blind in one eye become completely blind after a metal hit his good eye while working at df’s place. Df is liable employer must have a duty to take reasonable care to ensure the safety of the working environment of his employees because the working conditions already in risk of causing injury. Df must take into account the probability of injury occurring to the particular employee and gravity of the consequences of the injury. The df must have provide goggles to every employee even with 2 good eyes. He must take extra precautions to avoid the potential injury.  Df must have actual knowledge of the circumstances of the pl and has a duty to protect the welfare of pl. The measure of care undertaken must be proportionate to individual needs. v Bloomsbury Health  Johnstone Authority: Pl (junior doctor) working at df’s place required to work overtime up to 48 hours per week average. Stuart Smith LJ stated that every employee has different stamina. Df exposing pl to risk of injury to his health and shouldn’t have require him to work in excess of hours that he safely could have done.  Eastman v South West Thames Regional Health Authority: Pl was accompanying a patient in ambulance being thrown out of her seat due to her not wearing seat belt. However, df is not liable as there is notice as an adequate precaution in the ambulance instructing pl to wear seat belt.

2. Practicability or cost of precaution to the df  Risk must measure against the precaution that needs to be taken.  All precautionary measure undertaken by df will be consider in determining the reasonableness of the df’s conduct.

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Latimer v AEC: Df’s factory flooded due to heavy rain and caused part of factory to be very slippery due to mixture of water and oil, which caused pl’s employee slipped and fell. HOL held that risk of injury was insufficient to warrant the shutting down what is reasonable needs to be balanced with other factors. If the risk of injury is low, it would be unfair to require a lot of expense on part of df to reduce the risk. The risk is low and no extra cost is required to reduce cost is required to reduce the risk, the df will acting below required standard of care for not taking precautions to reduce the risk. Knight v Home Office: prisoner who known to have suicidal tendency hanged himself eventho officers observed him every 15 min. Prison authorities were held not negligent for failing to provide in a private psychiatric prison hospital and df have done everything they could within the allocated budget. Hamzah & Ors v Wan Hanafi bin Wan Ali: Pl who was passenger in a train hopped off and injured himself. The FC overruled and held that df have taken all the reasonable precaution and safeguard the passengers’ safety. There were notices and oral warnings by df to passengers to not stand near train door or jump off before train fully stopped.

3. Utility of the act of the defendant  Daborn v Bath Tramways Motor Co Ltd: Df drove a left-hand drive car and cause accident. The court held that df is not liable as the car was used as a balance during war time. The importance of df’s act outweighed the importance of his duty of car to others. However, this doesn’t mean that any risk will be justified in order to save life.  Mahmood v Gov of Msia & Anor: Pl was shot by police officer and the court held that the police weren’t acting negligently as the police had reasonable suspicion that an offence was being committed at the particular scene of the accident. The shots were justified in order to effect the arrest of pl as well as prevent him from escaping. 4. General and approved practice  GP: If a defendant does as a reasonable man would do the same thing in same situation, then the df will acted reasonably.  Lloyds Bank Ltd v EB Savory: Sometimes, conduct that constitutes a general practice of a particular group of people will still be considered negligent by courts and so evidence of general practice is not always decisive.  Luxmoore- May v Messenger May Baverstock: Est standard of practice may be practice of reasonable and prudent persons in df’s position, but it may fall or surpass the standard required by law of a reasonable and prudent person.

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General Cleaning Contractors v Christmas: Pl window cleaner fell from ledge on the window which was six and quarter inches in width and injured himself. HOL held that even though it is common practice for window cleaners standing on the window ledge, it is still a dangerous practice and df as employer liable for not providing a safer system of work. If an act is general and common practice, liability will still be imposed if the act is dangerous and gives rise to a considerable degree of risk of injury. Aik Bee Sawmill v Mun Kum Chow: Pl didn’t use a crossbar to lift plank causes the plank to fell onto him. The court held it is a common practice of people using crossbar to lift planks, hence df is liable as he didn’t teach pl to use the crossbar....