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Breach of duty of care - 2 stage test

• 1) What standard of care should the defendant have exercised ?
  • 2) Did the defendants conduct fall below that standard

When might special standards apply ?

• Where the defendant is a child
  • Mullins v Richards (1998)
• Possessing a special skill
  • Bolam v Friern Hospital Management Committee (1957)
• Standards of Care Medical Professionals
  • Post held - Wilsher v Essex AHA (1988)
  • State of Knowledge - Roe v Ministry of Health (1954)
• If defendant unwell?
  • Roberts v Ramsbottom (1980)
  • Mansfield v Weetabix (1998)
• Inexperience ?
  • Nettleship v Weston (1971)
  • Wilsher v Essex AHA (1987)

Applying the standard of care

• likelihood of injury or harm
  • Bolton v Stone (1951)
• Likely seriousness of any injury caused
  • Paris v Stepney BC (1951)
  • Weighted against the cost and practicality of precautions
    • Latimer v AEC Ltd (1953)

Did D's conduct fall below the required standard

• Claimant must prove negligence on the balance of probabilities
  • Criminal conviction on the same incident - S11 Civil Evidence Act 1968

The possible role of Res Ipsa Loquitur ('the thing speaks for itself')

• Infer negligence if
  • This kind of accident would not usually happen without negligence
    • there is no explanation of the accidents cause
    • the cause was in D's control
• Scott v London & St Katherines Docks Co (1865)