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Negligence (breach of duty - fault element of negligence)
Terms in this set (13)
What test do we use to determine if there has been a breach?
The reasonable man test (objective - doesn't take into account characteristics of defendant) - 'if the defendant falls below the standard of care which a prudent and reasonable man would have taken in that situation then there is a breach of duty' standard of care required in given situation is determined by considering what would be expected from a reasonable person (ordinary person perfoming task compitently)
What is the breach
'Failure to do something which a reasonable person would do or doing something they wouldn't'
What case illustrates reasonable man test
Nettleship v Weston - Mrs Weston arranged with neighbour to give her driving lessons. On her third lesson she failed to straighten up after turning a corner so she hit into a lamppost that fell into car injuring mr nettleship who then sued. Court decided she should been judged compared to a competent driver rather than learner.
Rules which provide guidance for test
Relate to degree of risk involved in situation or variations of standard of care expected.
Unknown risk of damage or harm then reasonable person cannot guard against it and neither can defendant so no breach
Roe v minister of health - anaesthetic was kept in glass tubes which were sterilised by cleaning solution. Not known invisible cracks would occur in the tubes causing anaesthetic to be contaminated by solution, claimant became paralysed and sued.
Small risk unlikely to be a breach as long as d taken some measures to deal with it, reasonable person not expected to go to great lengths
Bolton v stone - cricket ball hit a lady passer by in street outside a cricket ground. Evidence of a 17 foot high fence around the ground and the wicket was a long way from the fence. Also cricket balls only been hit out of ground 6 times in 30 years. Club had done everything needed to do given such a small risk.
Known risk, a person would take all steps to guard against it if they don't then there would be a breach
Haley v London electricity board - board dug a trench for its cables and only put warning signs following standard practice but didn't put barriers. They knew particular road was used by blind people from local area. Person fell and was injured.
Justifiable risk? Acceptable for public benefit. In emergency's greater risk and lower standard of care are accepted
Watt v Hertfordshire county council - claimant was firefighter. Road accident short distance away from fire station and was called to release a trapped woman under a lorry. Jack was needed but suitable vehicle was unavailable so they used a flatbed truck and claimant was asked to keep jack in place. They was then injured when jack slipped and fell on him.
practicality of taking precautions
Defendant only expected to do what reasonable person will do so courts balance the risk involved in a situation with the cost and effort required to take precautions.
Latimer v aec ltd - factory became flooded and floor was slippery with water and oil and workers were evacuated. Owners for all sawdust they had and spread across the floor to minimise slipping then workers went back in. One slipped. No breach decided as they taken all steps needed to with no need for additional expense to stop every possible risk.
Variations of standard of care expected depends on claimant or defendant
If defendant is an expert or professional then standard of care is that from a reasonable person within that profession rather than ordinary man
Bolam v friern Barnett hospital management committee - claimant suffered from mental illness and treatment was to receive electric shock. Signed consent form but wasn't told risk of broken bones etc and wasn't given relaxant drugs. Two opinions of undertaking etc. One to take drugs one only when reason to do so. Courts decided if hospital followed one of those then no breach.
Bolam test applies to all professionals to see if duty has been breached
1) does defendants conduct fall below the standard of the ordinary competent member of that profession
2) is there a substantial body of opinion within the profession that would support the course of action taken by the defendant
Has to be a yes for first question
If judge feels opinion given by experts is unreasonable then evidence doesn't count
If defendant is a child
Compare to a child of the same age
Mullin v Richards - two 15 year old girls play fighting with rulers in school, one snapped and fragments entered Mullins eye resulting in losing all sight in that eye
If person has special characteristics then standard of care should be higher
Paris v Stepney borough council - Mr Paris was blind in one eye, was given work to do by employers which involved small risk of injuries to the eyes. He wasn't given protective goggles and his good eye was damaged. Employers broken duty of care
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