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Flashcards in Negligence - Breach of Duty Deck (72)
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1

What is the significance of the concept of breach of duty of care?

Breach of duty is underpinned by the need to protect the threshold for a reasonable standard of care established by the duty of care tests previously discussed (Caparo etc).

2

What is the importance of imposing only a reasonable standard of care upon individuals?

It was said in the case of Cole v Davies-Gilbert that - 'If the law were to set a higher standard of care than that which is reasonable … the consequences would quickly become inhibited. There would be no fêtes, no maypole dancing and none of the activities that have come to be associated with the English village green for fear of what might conceivably go wrong.'

3

What is the key issue underpinning the breach of duty concept?

The issue is whether D’s conduct measured up to the required standard. The court addresses this issue in two-steps.

4

What are the two steps the courts consider when determining whether D's conduct meets the required threshold?

1. How the defendant ought to have behaved in the circumstances – what was the required standard of care in these circumstances? This is often described as a matter of law.
2. The behaviour of the defendant – did they (actually - as a matter of fact) fall below the standard of care required?

5

What is the basic test to determine whether a breach of duty has occurred?

The basic test is on of reasonableness.

6

What reinforced the test of reasonableness as the basic test for breach of duty?

The words of Alderson B in Blyth v Birmingham Waterworks, here he said - ‘Negligence is the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’

7

Who is the reasonable man?

1. ‘The man on the Clapham omnibus’ - Lord Bowen, Hall v Brooklands Auto-Racing Club
2. A ‘traveller on the London underground’ - Lord Steyn, McFarlane v Tayside Health Board
3. ‘The anthropomorphic conception of justice’ - Lord Radcliffe, Davis Contractors v Fareham Urban District Council

8

What is the importance of the concept of the 'reasonable man' in establishing a breach of duty?

If D is to be legally liable for the injury to C, they must have fallen short of the conduct expected of the reasonable man. Thus, the tort of negligence accords primacy to the ‘fault principle’ – it must be D’s fault (however ‘fault’ here should not be understood in terms of subjective or moral fault).

9

Which case illustrated the application of an objective test of reasonableness?

Nettleship v Weston

10

What were the details of the Nettleship Case?

C agreed to give D (a family friend) driving lessons. The car mounted the pavement and hit a lamp post, breaking C’s knee cap. D was later convicted of driving without due care and attention. C sued in negligence.

11

What was the finding of the Nettleship Case and how did it illustrate an objective test of reasonableness?

Applying an objective test of reasonableness, the majority of the Court of Appeal held that the duty of care owed to C was the same objective and impersonal standard that was owed by all drivers, including learners, to all road users. Thus, D was able to recover from C.

12

Are there any modifications or exceptions to the objective test of reasonableness that underpins breach of duty?

Yes, the courts do, sometimes, modify the general rule that the standard of care is objective to take into account certain characteristics of some defendants.

13

What are the two key instances in which the objective test of reasonableness may be deviated from?

1. Children - Where the defendant is a child
2. Common Practice - Where the defendant professes to have a special skill or competence

14

How does the standard of care required of children vary from the objective test of reasonableness?

It was laid down in Gough v Throne that the standard of care is ‘whether any ordinary child of 13½ [for example] can be expected to have done any more than this child did. I say ‘any ordinary child’. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13½’

15

Which case illustrates the practical application of the test of reasonableness for children laid down in Gough v Thorne?

Mullins v Richards

16

What are the details of this case?

Two fifteen-year-old school girls were having a mock sword fight using plastic rulers while sitting at their desks in class. This was a popular game at their school. Unfortunately, one of the rulers snapped and a fragment of plastic entered C’s eye, causing her to lose all useful sight in it.

17

What was the finding of the case of Mullins v Richards, and how did it illustrate application of the alternative test laid down in Gough v Thorne?

The Court of Appeal held that the correct standard of care was not whether an ordinarily prudent and reasonable adult in the position of the defendant would have realised that their actions created a risk of injury but whether this would be apparent to the ordinarily prudent and reasonable fifteen-year-old schoolgirl. On the evidence the defendant had not fallen below this standard.

18

How does the standard of care required from a person professing to have a special skill or competence deviate from the objective test of reasonableness?

Where a person professes to have a special skill or competence, the law requires that when dealing with people in the context of a calling or profession they do so with an appropriate level of competence.

19

What exemplifies or clarifies the position in regards to a different standard of care for persons professing to have special skills?

Rogers, Winfield and Jolowicz said on the matter - ‘Nobody expects the passenger on the Clapham omnibus to have any skill as a surgeon, a lawyer, a pilot, or a plumber, unless he is one; but if he professes to be one, then the law requires him to show such a skill as any ordinary member of the profession or calling to which he belongs, or claims to belong, would display’

20

Which case illustrates the application of the different standard of care required of persons professing to posses particular skills?

Bolam v Friern Hospital Management Committee

21

What were the details of this case?

A patient was given electro-convulsive therapy without being given a relaxant drug and without the appropriate physical restraints. In the course of the treatment C sustained a fractured hip.

22

What was the finding of the Bolam Case and how did it illustrate the application of the different standard of care?

It was held that D was not in breach of their duty as they had not fallen below the standard of care expected of a person professing to have the relevant skills.

23

What are the two modifications to the Bolam Principle?

1. Rank/Status v Post
2. Common practice must be logical and reasonable

24

What is the rank/status modification to the Bolam Principle?

Where D is occupying a particular post, their conduct will be assessed according to the standard reasonably expected of someone occupying such a post. The law makes no allowances for inexperience or for the fact that everyone must, to a certain extent, gain practical experience ‘on the job’.

25

Which case illustrates the rank/status modification of the Bolam Principle?

Wilsher v Essex Area Health Authority

26

What were the details of the Wilsher Case?

1. C had been cared for in the special care baby unit of a hospital, after being born prematurely.
2. On two separate occasions, he was given too much oxygen and so developed a condition known as retrolental fibroplasia (RLF) – an incurable eye condition affecting the retina.
3. He was eventually left him blind in one eye and with seriously impaired vision in the other.

27

What was the finding of the Wilsher Case and how does it illustrate the modification to the Bolam Principle?

C’s claim failed (on causation issues). However, it was established that the junior doctor was in breach of their duty of care in monitoring his blood - ‘the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service’.

28

Which case illustrates the logical and reasonable (requirement of common practice) modification to the Bolam Principle?

Bolitho v City and Hackney Health Authority

29

What are the details of the Bolitho Case?

A small boy was taken to hospital with croup. When in hospital there were complications and, sadly, the boy died. It was accepted that if he had been intubated this would probably have saved him.

30

What was the finding of the Bolitho Case and how did this illustrate the logical and reasonable modification to the Bolam Principle?

It was held that the D was not liable because he had acted in a reasonable and logical fashion.