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2. BREACH OF DUTY: STANDARD OF CARE - Coggle Diagram
2. BREACH OF DUTY: STANDARD OF CARE
For a defendant to be liable to negligence, the defendant must not only owe a duty of care to act reasonably to the plaintiff, but must also breach that duty.
Eg- restaurant owes a duty to its customers not to serve spoilt or unhealthy food because it is foreseeable that the customer would fall ill if he consume the spoilt/unhealthy food. Hence, if the restaurant serves that kind of foods then the restaurant breaches its duty.
The test applied in order to determine foreseeability is the test of reasonable person of ordinary prudence @ reasonable man test.
What is Reasonable man test?
Under the test, the Defendant will be asked a question ‘would a reasonable man have acted as the Defendant has done if the reasonable man was faced with the same circumstances as the Defendant? If the answer is ‘YES’ then the Defendant is not in breach of duty. If the answer is ‘NO’ then the Defendant is in breach of duty.
CASE: BLYTH V BIRMINGHAM WATERWORKS (1865
)
Negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do.
CASE: BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE
The test is the standard of the ordinary skilled man exercising and professing to have highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act. In the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.
CASE : BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE
Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy.
He was not given any muscle relaxant, and his body was not restrained during the procedure. He suffered some serious injuries, including fractures of the acetabula .
He sued the Committee for compensation. He argued they were negligent for not issuing relaxants, not restraining him, not warning him about the risks involved.
The court held that the defendant was not liable as the defendant had conformed to the expected standard of reasonable doctors and not holding down the body was not improper action
MAGNITUDE OF RISK
The degree of care required of the D must be weighed against the degree of magnitude of risk created by the D’s conduct. Degree of risk can be divided into TWO factors:
i. Probability of injury occurring (the extent to which the risk could have been foreseen)
ii. Seriousness of injury- the greater in potential harm the more important it is to take sensible precautions against it
CASE: BOLTON V STONE
A cricket ball was hit right out of a cricket ground and strucked the P’ standing on the highway. There was a 17 foot high fence and a distance of 78 yards between the cricket ground and the highway. It was proved that the ball had only been hit out of the ground about 6 times in 30 years.
HELD: the risk of injury was too remote. A seven-foot dence had been constructed to keep the balls in and the distance between the place where the ball was hit to the edge of the field where the plaintiff was injured. The club was held not liable.
CASE:PARIS V STEPNEY BOROUGH COUNCI
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The D’ were held to have been unreasonable in failing to supply safety goggles to a one-eyed workman. The consequence of their lack of care was the total blindness brought upon the workman when a chip of metal flew into his one good eye.
HELD: the employer had a duty of care to take reasonable care to ensure the safety of the working environment of his employees. The employer has to take into account the probability of injury if an accident did occur. Eye- goggles should have been provided to the plaintiff as the risk of injury and gravity of injury would result in losing his eyesight.