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Tort 4 - Breach of Duty of Care: - Coggle Diagram
Tort 4 - Breach of Duty of Care:
The Objective Standard:
When it is said that D has breached a duty of care owed to C, it means that D has fallen below the standard of behaviour expected in a person undertaking the activity concerned.
The test is an objective one based on the reasonable person.
Nettleship v Weston [1971]:
C was giving a friend's wife, D, driving lessons in her husband's car.
C was injured when D struck a lamp and sued for negligence.
COA HELD: D was liable as she fell below the standard of care of a reasonably competent driver, which applied regardless of her inexperience.
The objective standard equally applied to a driver who becomes physically incapable of controlling the vehicle due to a physical impairment.
Roberts v Ramsbotton [1980]:
D was driving and did not feel well.
Suffered a stroke.
Had two collisions and kept driving until crashing into C's parked car.
C was left injured.
HELD: D was in breach as had not completely lost control of his actions, which fell below the objective standard of care imposed on drivers.
Mansfield v Weetabix Ltd [1998]:
D, lorry driver, unknowingly had a condition which could prevent his brain from functioning adequately.
D suffered this while on a drive, crashing into C's property.
D had not fully lost consciousness, but he would not have continued to drive had he known he was impaired.
COA HELD: under the altered standard of care, D had not been in breach.
Leggatt LJ:
“There is no reason in principle why a driver should not escape liability where the disabling event is not sudden, but gradual, provided that the driver is unaware of it”
Standard of Reasonableness:
The standard is based on reasonableness so that when a duty exists, the duty requires a person to do whatever a reasonable person would do to prevent the anticipated harm from occurring, not to do absolutely anything and everything possible to prevent said harm.
Simmonds v Isle of Wight Council [2003]:
C was a 5y/o, at a school that D was responsible for.
Left playing field during sports day to join mum for picnic.
Mother directed C to his teacher and left.
C went on swings instead, jumped off and broke his arm.
Question of duty of care.
HELD: school had been reasonable as they put things in place to impose reasonable precautions by having supervisors when playing field was in use. To eradicate risk would be to eradicate playing field. School not liable.
Magnitude of Risk:
Likelihood of Harm:
Bolton v Stone [1951]:
Cricket ball case
HOL HELD: D had not fallen below standard of care as had taken precautions and likelihood was small.
Miller v Jackson [1977]:
C's home was near D's cricket grounds.
Several cricket balls were hit into C's home, damaging it.
C sued in nuisance and sought an injunction.
COA HELD: D was liable in negligence and nuisance but no injunction was granted as the grounds were of public interest.
Hayley v London Electricity Board [1965]:
Blind man used cane.
Portion of pavement was dug up and the workers placed a runner as obstruction.
C missed the runner with his cane as it was too low and fall over, hitting his head against the pavement and went deaf.
HOL HELD that D had a duty of care to all pedestrians to adequately warn them about the area and this was likely to impose harm.
Severity of the damage:
"Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life"
(Glasgow Corp v Muir [1943])
Practicality of Precautions:
At what point precautions become so costly that a
reasonably person would be justified in not taking them?
Latimer v AEC Ltd
BOLAM TEST: PROFESSIONAL OPINION
"A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art...Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view"
per McNair J
Bolam v Friern Barnet Hospital Management Committee [1957]:
C was not given muscle-relaxant drugs nor restrained by his doctor, D, prior to electro-convulsive therapy.
C also not warned of risk by D.
C suffered injuries during procedure.
HC HELD: D had not breached his duty of care to C as professional witnesses had confirmed that much of medical opinion was opposed to the use of relaxant drugs and manual restraints could sometimes increase the risk of fracture, and that it was common practice not to warn of risks unless asked.
Bolitho v City & Hackney Health Authority [1997]:
Doctor (D) failed to attend to a child with respiratory difficulties.
After repeated episodes, child suffered brain damage and died.
Child's mother sued in negligence against the HA that employed the doctor.
Counsel for D argued that even if the doctor attended to the child, he would not have intubated him.
HOL HELD: Bolam test applies to causation + still stands. Bolitho instated that in circumstances where there are two opposing bodies of opinion on a specific course of treatment, the court might make themselves arbiters of what is correct.
S. 1 of the Compensation Act 2006:
'In deciding what steps a D should have taken in satisfying a duty of care a court: may...have regard to whether a requirement to take such steps might-
Prevent a desirable activity from being undertaken at all, to a particular extent, or in a particular way, or;
Discourage persons from undertaking functions in connection with a desirable activity.'