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Tort - Standard of Care: Breach of Duty (Duty (Strongly influenced by…
Tort - Standard of Care: Breach of Duty
Duty
Useful control mechanism that courts use to expand or restrict liability
Strongly influenced by policy - approach has changed over the years
Pro claimant - high standards
Pro-defendant - floodgates
However breach has fewer policy concerns than establishing duty
Not as important to know year of cases in breach, though chronological order is helpful
Establishing duty and breach does not prove negligence - only relationship between parties that allows claim to continue
Need to decide
Standard of care required of defendant - question of law
"Reasonable man"
Judged on the act not the actor
Nettleship v Weston (1969) - learner driver judged on same standard as competent driver - consistency
Wilsher v Essex (1987) - junior doctor judged on same standard as any other doctor
Sometimes choice of standard
Philips v William Whitely (1938) - jeweller piercing ears judged on standard of competent jeweller, not doctor
Wells v Cooper (1958) - judged on standard of someone reasonable at DIY, not carpenter
Would have been different if it was a skilled task, such as electrics
Disability
Case law refers to temporary disability
Roberts v Ramsbottom (1980) - had stroke whilst driving but aware enough to have stopped
Mansfield v Weetabix (1998) - hyperglycaemic attack whilst driving but didn't have chance to realise something was wrong before accident
Dunnage v Randall (2015) - schizophrenic set fire to himself - aware enough to not have endangered nephew
Children
Reasonable child of that age
Mullins v Richards (1998)
Orchard v Lee (2009)
Sports cases
Reasonable sportsperson at that sporting level
Condon v Basi (1985) - amateur
Watson v Gray (1958) - professional
Use common sense to conclude what reasonable person would have done in circumstances
Whether defendant has fallen below this standard - question of fact
Professionals - easier to ascertain
Bolam v Friern Hospital Management (1957) - reasonable professional standard - if there are different bodies of respected opinion, court cannot choose
Maynard v West Midlands (1984)
Bolitho v City and Hackney HA (1998) - will find breach if it's a body of medical opinion they don't find reasonable
Re Herald of Free Enterprise (1987) - doesn't matter if normal practice if dangerous - ferry capsized with bow doors open
General factors to consider - balanced against each other
Likelihood of harm
Often use statistics
Bolton v Stone (1951) - cricket ball hit out of bounds - likelihood very low
Wagon Mound No 2 (1967) - commented on Bolton - if precautions are easy should take them even if likelihood is low - persuasive Privy Council view
Pearson v Lightning (1998) - golf ball hit into crowd - likelihood high and could have taken precautions
Haley v London Electricity Board - blind person fell into hold - didn't see hammer placed there as indicator - significant number of blind people in area so likelihood high
Magnitude of harm
Paris v Stepney BC (1951) - blind in one eye and got hit in other eye whilst welding - made completely blind - if magnitude would be worse, need to take more precautions - should have provided goggles
Watson v British Boxing Board (1965) - suffered severe brain damage because failed to provide ringside resuscitation equipment - both likelihood and magnitude high
Expectations differ with circumstances - would have been different with amateur boxing club - likelihood and magnitude lower
Cost and practicality of precautions
Not always possible, but if risk is too high shouldn't do it
Latimer v AEC (1953) - slippery floor - covered 90% with sawdust - other alternative would have been closing whole factory - cost high
Would probably be different today
Knight v Home Office (1990) - prisoner committed suicide in prison - restrained resources but still held to have breached
Utility of defendant's actions
Comes into play in emergency situations where might be expected to take more risk
Daborn v Bath Tramways (1946) - injured by ambulance with left-hand drive - more risky but wartime and held to be necessary
Ward v London (1938) - fire service crashed running red light - in breach - can't take risk if utility of action isn't justified
Watt v Hertfordshire CC (1954) - lifting jack in back of fire truck crushed fireman - didn't secure - held to be justified
Social Action, Responsibility and Heroism Act 2015 - take context into account - simply restates common law
Make sure to do this in exam - what additional precautions could have been taken etc.
Very fact-based
Who is the "reasonable man"?
Hypothetical standard
Lord Greer 1933 - man on Clapham omnibus who mows the law in his shirtsleeves (Hall v Brooklands Auto Racing)
Lord Macmillan 1943 - objective standard - not considering specific defendant (Glasgow Corporation v Muir)
Lord Oaksey 1951 - not perfect - average - would take some risks (Bolton v Stone)
Lord Reid 1955 - no absolute standard - use of common sense - always tempting to conclude negligence in wrong but sometimes defendant has taken reasonable care (Carmarthenshire CC v Lewis)