Breach

Breach

1. determining factors

   • Foreseeability of risk
     • would be unfair to expect someone to guard against a risk that is not within their reasonable contemplation
       • ROE - spinal anaesthetic became contaminated with sterilisation fluid as a result of hair line cracks in the glass ampules - resulting in paralysis. no liability - this had never occurred before so it was unforeseeable
   • magnitude of risk
     • the precautions taken should be proportionate to the risk
       • BOLTON V STONE - C hit by cricket ball from 100 yards away over a 17 foot fence. no liability - cricket ground had done everything reasonable to avoid people being hit
   • thin skull rule
     • the defendant must take extra care with the claimant who is susceptible to a certain type of harm
       • PARIS - claimant was blind in one eye, then blinded in the other when the defendant failed to supply with safety goggles. they were liable for the total extent of the damage because the duty was greater than normal
   • social utility of the activity
     • is it justified to take the risk in question
       • WATT - the jack used in car accidents was taken to an accident unsecured from its own vehicle, during its use, a fireman was injured. there was no liability because the risk was justified
   • practicability of precautions
     • reasonable man only has to do whats reasonable to avoid risk of harm
       • LATIMER -
   • Common Practice
     • just because something is NOT common practice, does not mean it is negligent
       • BROWN V ROLLS-ROYCE - employer failed to provide barrier cream - which is common practice, C contracted dermatitis - no liability because it could not be shown that the barrier cream would prevent the condition

2. The Reasonable Man

   • BLYTH - fire plug loosened by frost caused the C house to flood, there was nothing the D could have reasonably done to prevent the damage
     • objective test
       • GLASGOW - children scalded by dropped tea urn - liability based on reasonable man test
   • test is the used in other areas e.g. motorists
     • NETTLESHIP - on her third lesson a learner driver crashed injuring her instructor. liable - her lack of experience did not matter
   • no lowering standard for lack of experience
     • WILSHIRE - junior DR administered too much oxygen which may have caused a baby's blindness, no reduction of liability because he was a junior doctor
   • duty owed by child is proportionate to the age and understanding
     • MULLIN - two 15yo girls fencing with ruler, one shattered injuring one girls eye - CoA- such games were common place and would not normally lead to injury so the injury was unforeseeable for girls of that age

3. standard of care for professionals

   • the standard of care appropriate to professionals is not measured by the reasonable man test. person exercising such specialist skills will be judged instead against his natural peer group
     • the standard originates from BOLAM
       • BOLAM - during ECT the DR failed to administer relaxant drugs or any means of restraint during treatment. C suffered fractured pelvis. the question was whether this was negligence. since there were DRs who would've done the same thing the DR had acted in accordance with a competent body of medical opinion so there could be no negligence
         • the standard expected is that of a competent body of professional opinion, it is possible for the practice of the profession in question to be excepted by only a minority
           • Defraitas - DR conducting spinal surgery considered an exploratory operation necessary, the argument that there was negligence was only shown by 11/1000 surgeons who would have operated in this case was rejected, court of appeal held the number involved was capable of being a competent body of medical opinion
   • after criticism of BOLAM e.g. professionals protecting professionals , the HoL suggested it is for the court in each case to decide what the standard of care is, not professional opinion
     • BOLITHO - child being treated for croup, airways became blocked + DR failed to attend. boy suffered cardiac arrest + brain damage. claimed not liable because Dr would not have intubated even if she had attended
       • HOL rejected idea that DRs should ecsape liability because of evidence put forward by a number of experts who claim to represent a reasonable respectable or responsible body of opinion.
         • the body must show there is a logical basis for their opinion