TORT OF Negligence Breach OF DUTY OF CARE PDF

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Tarot of Negligence Breach Of duty of care ...

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Tort of Negligence A person commits the tort of negligence (failure to use reasonable care) if they carelessly (not deliberately) cause harm to another person Tort of negligence is committed when:

2.

1. 2.

A person owes the other a duty of care There is a breach of the duty of care

3.

The breach of duty of care causes the victim to suffer reasonable foreseeable harm

Breach of duty of care

Breach of Duty of Care

A breach of duty of care would occur if a defendant failed to do what a reasonable would have done in circumstances where there is foreseeable and significant risk or harm involved. An objective test would determine whether a normal person would have taken precautions against harm under different circumstances

Probability Bolton v Stone (1951) – Stone lived opposite a cricket ground. Hit by a cricket ball one day while standing outside. Probability is that it only flew out 5-6 times in 30+ years, let alone hit someone. Given the probability, a reasonable person need not take more precautions than what was already in place. No breach occurred. Likely Seriousness of Damage

a) b) c) d) e)

The probability the harm would happen if precautions were not taken (HIGHER LIKELIHOOD = HIGHER STANDARD OF CARE SHOULD BE GIVEN) The likely seriousness of damage (MORE SERIOUS = MORE PRECAUTION) The burden of taking precautions to avoid the risk of harm (HIGH COST?) The level of skill required for performance of task (DIFFICULT = MORE PRECAUTION) Minor or inexperience

High risk, High cost (must take sufficient precaution)

Low risk, Low Cost (must take precaution)

High risk, Low Cost (Must take precaution)

Low risk, High cost (Not as much precaution need to be taken)

Paris v Stepney Borough Council (1951) – Paris worked for SBC. Paris was partly blinded in one eye following WWII. Due to his nature and potential risk of work, MBS did not take enough precaution to prevent accidents from happening (supplying and wearing googles), causing him to be fully blind after an accident happened. Given the likely seriousness, SBC should have taken more precaution. Burden of taking precaution Latimer v AEC Ltd (1953) – Factory owned by AEC was flooded and floor became slippery. Latimer slipped as a result. No breach of duty of care as it would be too expensive to close down the factory just to dry the floor. Level of skill Wells v Cooper (1958) – Defendant fitted a door handle at his home. Deemed to be low level of skill thus don’t need to hire someone else to specially fit it. Door handle gave way when plaintiff visited. No breach of duty of care needed as enough precautions were already taken for the act of that level of skill. Minor

3.

Harm caused by the breach of duty of care

Must have  

The breach of duty was a necessary condition of the occurrence of the harm (factual causation) The scope of the liability of the defendant to extent to the harm so caused (scope of liability)

Factual Causation The defendant is only responsible for harm that was actually caused by their carelessness. Need not be the only reason that caused the harm to the plaintiff. As long as through but for test, factual causation can be established (would A have suffered harm/happened if B had not happened) Scope of liability

McHale v Watson (1966) – plaintiff threw dart and hit defendant in the eye. No breach of duty of care as a minor or someone inexperience would have a lower standard of care.

Harm caused by the breach of duty of care Factual Causation Yates v Jones (1990) – Yates injured by car accident with Jones at fault. During recuperation, he got addicted to heroin as a result of him consuming during that period to relieve pain. The addiction of heroin was caused by Yates friend and not by Jones. Mckew v Holland (1969) – plaintiff got injured as a result of negligence at work from defendant. While in this injury state, he fell down the stairs and suffered disability as a result. Factual causation achieved and breach found. Scope of liability

The court must decide if it is appropriate for the scope of the defendant’s liability to extend to the harm actually suffered by the plaintiff.

Rowe v McCartney (1976) – Rowe had a powerful car in which she allowed McCartney to drive. Accident occurred and McCartney became a quadriplegic. Rowe although suffered only minor injury, suffered mental illness as a result of letting McCartney drive the car. Mental illness was not reasonably foreseeable from the accident and thus no breach.

This means that the harm done must be reasonably foreseeable and not too remote.

Egg-shell Skull Rule

Egg-shell Skull Rule If a plaintiff suffers greater than usual harm because of a pre-existing vulnerability caused as a result of the negligent act, the defendant will be liable for the full extent of the harm provided that the harm is a foreseeable consequence of the negligence.

Smith v Leech Brain & Co (1962) – Smith suffered burns on his lips as a result of negligence by employers. Burn triggered cancerous cells which caused smith to die afterwards. Burn was a result of foreseeable consequence of negligence by employer and thus is liable for the death of smith....