Breach

Standard of Care

General Blythe v Birmingham Water Works- must behave as a reasonable person would in the circumstances (objective)

Act, not the actor

Nettleship v Weston- when driving you are compared to the reasonable driver, it was irrelevant that they were a learner/inexperienced

Wilsher v Essex- training doctors compared to the reasonable person acting as a doctor, the inexperience was irrelevant

Condon v Basi- different circumstances are taken into account when playing competitive sports, first division football was judged differently to local leagues

Bolam- judged against the reasonable man exercising and professing to have that professional skill

Mullin v Richards- children are judged as the reasonable child of that age

Illness/disability

Roberts v Ramsbottom- if you know your consciousness is impaired and drive, you will be compared to the reasonable driver (could only escape liability if total loss of consciousness)

Mansfield v Weetabix Ltd- if they are unaware, they will be judged as a reasonable driver who was unaware they were suffering with a condition that impairs their ability to drive (lower standard)

Establishing breach

Likelihood of Harm

Bolton v Stone- if there is a low likelihood of harm, less likely to be in breach and less expectation to guard against risk

Haley v London Electricity Board- if risk is not unlikely enough, there may be breach, not protecting blind people as well as sighted as seen as breach

Magnitude of Harm

Paris v Stepney Borough Council- where potential injury is serious, more precautions are expected to be taken

Watson v British Boxing Board of Control

Practicality of precautions

Latimer v AEC- the precaution was sufficient. They laid down sawdust for a slippery floor and any other precaution would be disproportionate to the risk of injury

Benefit of D's Conduct

Watt v Hertfordshire County Council- generally where life is at stake, abnormal risks may be justified

Ward v LCC- shows this is not a blanket for all emergency services, fire authority held liable for damage caused by going through red light

Compensation Act 2006

Take into account whether finding them liable may a) prevent a desirable activity from being undertaken at all/to an extent/in a certain way b) discourage persons from taking function in relation to a desirable activity

Social Action, Responsibility and Heroism Act 2015- Take into account whether the person has acted for the benefit of society, whether they adopted a primarily responsible approach to protect the safety, or whether they were acting heroically to help someone in danger

Common Practice

Generally it can be argued that if something is regarded as common practice in a field, they will not be in breach

Re Herald of Free Enterprise- common practice can still be found to be negligent if illogical or it is not backed by expertise

State of the Art Defence

Roe v Minister of Health- unforeseeable risks cannot be guarded against and so failure to guard against them will not be seen as breach

Sport

Wooldridge v Sumner- reckless disregard will not find breach as in a competitive nature, people will take more risks

Watson v Gray- there is a breach if a reasonable person of the defendant's level could foresee significant risk that what they would do would cause serious injury

S11 Civil Evidence Act 1968

if a criminal conviction is proof of careless conduct, it can be used as evidence in civil cases

Res Ipsa Loquitur

'the facts speak for themselves' used where difficulty proving but the only plausible explanation is D's negligence

Scott v London & St Katherine Docks- conditions to be satisfied 1) thing causing damage was under D control, or someone D is responsible for 2) accident would not normally happen without negligence 3) cause of the accident is unknown to C/no direct evidence

Professional Negeligence

McCulloch & Others v Forth Valley Health Board- a) whether to decide if risk is material, must consider if a reasonable person in C's position be likely to attach significance to it or the doctor is or should be reasonably aware the particular C would place significance on it b) Bolam test applies when taking reasonable care to advise of alternative treatments. A doctor can use expertise and rule out certain alternatives if supported by a medical body

Montgomery- must ensure patient is aware of any material risks involved in recommended treatment and any reasonable alternatives