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Breach of Duty (risk factors) - Coggle Diagram
Breach of Duty (risk factors)
Policy / Public benefit to taking risk:
If there is an emergency then greater risks can be taken and a lower standard of care can be accepted. This is consistent with the third part of establishing a duty of care (the fair, just and reasonable)
Watt v Hertfordshire county council
Held:
There was no breach of duty. The emergency of the situation and utility of the defendant's conduct in saving a life outweighed the need to take precautions.
Day v High Performance sports: held, there was no b reach in the duty of care as the manager acted what he seemed was an appropriate way in that situation
greater risk can be take in emergency situation
duty of care not breached in view of emergency
Size of risk
Where risk is small it is unlikely that there is a breach of duty.
Bolton v stone: a cricket ball hit a lady passer by in the street The cricket field was surrounded by a 7 foot fence. The pitch was sunk ten feet below ground so the fence was 17 feet above the cricket pitch.
Held:
No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.
Greater care to be taken if higher chance of injury
Special Characteristics
this is shown in the case of Paris v Stepney.
when a claimant possesses special characteristics such as disability etc where there would be a higher standard of care.
The claimant only had sight in one eye due to in injury sustained in the war. During the course of his employment as a garage hand, a splinter of metal went into his sighted eye causing him to become completely blind. The employer did not provide safety goggles to workers engaged in the type of work the claimant was undertaking.
Held:
There was a breach of duty. The employer should have provided goggles to the claimant because the seriousness of harm to him would have been greater than that experienced by workers with sight in both eyes. The duty is owed to the particular claimant not to a class of persons of reasonable workers.
Unknown risk
if the risk of harm is not known, there can be no breach.
Roe v Minister of health: in a hospital anaesthetic was kept in glass tubes which were sterilized by cleaning solution after each use. at the time it was unknown that invisible cracks could occur in the glass and allow the anaesthetic to be contaminated the claimant was paralysed by the contaminate anaesthesia.
Held:
There was no breach of duty. The risk was not foreseeable as it was an unknown risk at the time.
Precautions
The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk
Latimer v AEC LTD: a factory became flooded and as the floor was very slippery with a moisture of oil and water the workers were evacuated. The defendant's had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible. The trial judge held that there had been a breach of duty as the defendants should have closed the factory if it was unnsafe.
Held:
There was no breach of duty. There was no duty to close the factory. The defendant only had to take reasonable precautions to minimise the risk which they had done. There was no need to go to great expense to eliminate any possible risk and thus no obligation to close the factory.
Risk involved is balanced against the cost and effort of taking precautions.