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Standard of Care (Degree of Risk and Probability of Harm (O'Gorman v…
Standard of Care
- Degree of Risk and Probability of Harm
O'Gorman v Ritz
Facts: P put leg on seat in front of her at cinema, person sat down and her leg injured
Held: More than one million people had attended that cinema in preceeding 7 years
- no similar complaint
- probability of accident remote
- risk not known risk and cinema owners could not have foreseen its occurrence
Haley v London Electricity Board
Facts; Blindman fell down open manhole
Held: Possibility of a blind person walking in areas was v likely
- D should have foreseen particular injury and taken (easy) precaution to avoid it
Court will consider the likelihood of harm occurring
- where known risk, courts v reluctant to allow person to avoid liability for an otherwise foreseeable event
Kelly v St Laurence's Hospital: The essential question is whether the risk of injury or damage complained of was such tat a reasonable person in the position of the D would have taken the precaution suggested by the P
Hall v Kennedy:
Facts: P was a patron of D's pub when he was attacked by another patron
Held: Owners of drinking establishment owe DOC to their patrons to have due regard for their saftety while on premises
- includes removing customer that may pose risk
NOTE HERE: no liability as prior to assault patron had not given any indication of violent temperament
Principle: sufficient staff should be employed to ensure no danger exists
Introduction
Once DOC estab: second consideration= whether the actions of the D fell below standard of care expected in circumstances
- Negligence therefore can be defined as any conudct that falls below the standard expected of the ordinary reasonable person
- OBJECTIVE test to determine if the defendant acted reasonably
Objective Test
Whether the conduct falls below the standard expected of the ordinary reasonable person
Glasgow Corporation v Muir: The standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question
- Law does no take account of a person's individual characteristics
Law does allow certain factors to be considered1. Person's Mental or physical capacity
- D suffering from schizophrenia and whilst visiting P, poured petrol over himself, causing himself o die and leaving nephew with serious burns
Issue: Claimant sought damages from estate and household insurers
Held: Once determined actions voluntary- standard of care should be assessed objectively
2. Knowledge that is beyond a person
Facts: Phenol contaminaed anaesthetic causd parapalegia
-Held: Cracks could not have been identified and there was no knowledge of the possibility of paraplegia
- No want of care
- ' We must not look at he 1947 incided with 1954 spectacles'
Nettleship v Weston: Learner driver argued standard of care lower
Held- No- standard expected is same for everyone
- Wont consider individual characteristics
- Seriousness of Harm/ Gravity of the Threatened Injury
Paris v Stepney Borough Council
Facts: Paris blind in one eye
- Worked on production line where shards of material often flew off towards operators
- No protective clothing to protect workers even though aware of situation
Held: Council owed special duty to Paris because he was already blind in one eye
- Far more vulnerable position than his co-workers
Voewles v Evans
Facts: D rugby referee wrongly allowed P be substitued into a front-row position though he was a flanker
- Scrum collapsed leaving P paralyzed
Held:
- given referee's experience of the game
- Knowledge P was being substituted in breach of rugby league rules
The potential risk of serious spinal or neck injury was significant and so D fell below standard of care owee
- Court took serious risk of injury into account in holding referee liable
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- The practicability of Taking Precautions and the Cost of Preventing Harm
Latimer v AEC:
Facts: Unusually heavy rain storm caused flooding
- Water mixed with oil causing slippery surface after water receded
- Some soawdust put down in most of the effected areas but a loading bay not covered and employee slipped, injuring himself
Held: Court refused to impose liability on employer
- Where reasonable attempts made to deal w problem this will suffice
- Temporary delay in dealing w full extent of matter may be expected in circumstances
Sutherland v Supervalu:
Facts: Child's hand caught in conveyor belt at D's till
Held: To impose liability would result in Ds and all other supermarkets, being required to continuously monitor all children who helped thier parents loading items onto conveyor
= disproportionate, burdensome and unduly onerous requirement
Starting point: Law expects people to take precautions that are reasonable in guarding against harm to others
- Where avoiding the injury would have required a significant and disproportionate effort, the risk in qu is of a minor variety= liability not imposed
- Social Importance of the Risky Activity
Mulcare v Southern Health Board:
Facts: P was employed by D as a home carer
- House of person she was looking after was in such a state of disrepair she injured herself in course of her duties
Held: Would have been inappropriate to require D to enforce standards on the elderly people who avail of their services
- The very purpose of acting as a home carer carried great social benefit
- To impose liability would jeopardise that function in society
Flynn v Bus Atha Cliath
Facts: P bus passenger injured when flung to ground by sudden braking by bus driver to avoid child on road
Held; not negligent in a claim by passengers who had been waiting to disembark at the next stop and who were flung to floor of vehicle
Held: Whereas he had a DOC towards his passengers- no doubt Mr O'Friel acted in accordance with the higherst standards of driving and is to be commended for avoiding a tragedy
Children
Curley v Mannion
Facts: Daughter (13) of driver of car opened door into path of cyclist
- Driver considered negligent for failing to control the child
Qu is more difficult where the child is alleged tort feasor
- There is no Irish authority on point
- An anology is expected to be made to the position in respect of contributory negligence of children