17440004
Description
Flashcards by Sam Grimley, updated more than 1 year ago
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Created by Sam Grimley
about 5 years ago
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| Question | Answer |
| In every case, when considering breach, the courts must decide two things - a question of law and a question of fact. What are they? | 1. What is the standard of care required of the defendant? (Question of law) 2. Has the defendant fallen below this standard? (Question of fact) |
| What is the classic definition of standard of care? Give the authority. | Negligence is the omission to do something which a 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. Blyth v Birmingham Waterworks (1856) Aide: Frances Blyth v Birmingham Crying. Don't cry. Be reasonable. |
| What is the standard of care? Give an authority. | The standard is that of a ‘reasonable man’ Hall v Brooklands Auto Racing (1933) Held: 'the man on the Clapham omnibus, or… the man who takes the magazines home and in the eveing pushes the lawnmower in his shirt sleeves' Rob Hall is the man on the Clapham omnibus, and he lives in a house with a brook and a land (not a field) at the back, it's where is racing car is parked. |
| Does a negative consequence always involve a breach? | Carmarthanshire CC v Lewis (1955) Facts: CC were running a nursery school and two 3 year olds got through a gate, and made their way into the road. A lorry swerved and the driver was killed. Held: There is only a duty not to be negligent, but there is not a requirement never to have anything go wrong. You can't work backwards from a terrible outcome and use that to influence your judgement on whether there was a breach. This is helpful, because it reminds us that a negative consiquence is not necessarily indicative of a breach. They are separate questions. |
| What standard is a learner driver held to? | Nettleship v Weston (1969) Facts: a learner driver was receiveing a lesson from a friend. It was her third lesson. She crashed into a lamppost, and the instructor got an injured leg. The instructor sued. |
| What standard is a junior doctor held to? What is the authority for the idea that we look to the act, and not the actor, in order to establish the reasonble duty of care? | Wilsher v Essex (1987) Facts: a junior doctor was treating a baby, and inserted a cathater into a baby vein, instead of their artery. Can we take into account the fact it was a junior doctor? Held: no. There is only one standard - that of a reasonable doctor. You judge the defendant by the standard expected in the particular act and not of the particular actor. |
| Authority for when there is a choice of standard - getting your ears pierced. | Philips v William Whitely (1938) Facts: in 1938 you could either go to a jeweller or a surgeon to get your ears pierced. The claimant went to a jeweller, contracted an infection, and sued. Do you judge the jeweller according to the standards expected of a jeweller, or the standards expected of a surgeon? Held: this is one of the few examples where you do judge by the standards of the actor. He was working as a jeweller and professing to work at that standard. Aide: Melanie Philips is getting her ears peirced. |
| What if the activity doesn't require special skill, but can often be performed by a professional? E.g. DIY? | Wells v Cooper (1958) Facts: Cooper loved DIY. Put on a door knob. Wells pulled the knob, it came off, and he fell over backwards and injured himself. Held: a carpenter would normally do the job of putting on a door knob, but it's not very technical and it's not unusual for non-qualified people to do it… the defendant was held to the standard of the amateur. Dispute: this will not apply to more complex tasks like electrical wiring. A job like that should be done by an experienced professional, and anyone carrying out that task will be judged by that standard. Aide: Damien Cooper trying to fix Wells Cathedral. |
| Give an example of temporary disability not impacting the courts decision about whether a breach had occurred. | Roberts v Ramsbottom (1980) Facts: the defendant crashed a car and caused a loss to the claimants. Just before he hit a parked van, and then knocked over a cyclist. Finally he hit the claimant. He discovered later that he was suffering from a stroke, but wasn't aware of this at the time. Held: could the courts take into account he was unwell? They said 'you should have been aware of it'. You should not have continued driving after you had hit the van, due to feeling unwell. A reasonable man would have stopped driving when they realised their driving was impared. Aide: Will Roberts has a stroke driving a car to Ramsbottom to see Ian and Alex. |
| Give an example of temporary disability impacting the courts decision about whether a breach had occurred. | Mansfield v Weetabix (1998) Facts: a lorry driver crashed his vehicle into the claimant’s shop after suffering a hypoglycaemic attack. There was no evidence to suggest thatat any point prior to the crash, the driver knew that his ability to drive was impaired. The crash and the attack happened simultaneously so he had no time to take evasive action. Held: the lack of awareness, and the rapid nature of the attack, meant the courts did take it into account. |
| Give an authority of the ongoing mental illness of the defendant not mitigating the finding of a breach. | Dunnage v Randall (2015) Facts: the uncle of the claimant was suffering from schizophrenia, and while the nephew was visiting, the uncle set himself on fire. The uncle killed himself and caused burns to the claimant. Held: what standard were the courst going to judge the uncle by? The judge said 'although the defendant was suffering from mental illness, it did not entirely eliminate fault or responsibility.' The standard is objective, and he's going to be judged by the reasonable man standard. Dispute: it seems that the courts are going to rarely deviate from the objective 'reasonable man' standard, especially considering how recent this case is. Aide: Jourdan Dunn came of age, and went to visit Randall, who played so fast CRAZY fast he lit himself on fire, injuring her. |
| Give an authority that shows what standard a child in a school fight will be held to. A reasonable man? | It's very rare to sue a child - they generally don't have money - but there is nothing to stop you doing so. Mullins v Richards (1998) Facts: two 15 year old schollgirls are play fighting with plastic rulers. A part of one of the rulers shatters and enters the eye of the claimant. Held: reasonable man standard? The courts did take into account her age. They didn't take into account her particular maturity level, but said that she's going to be judge by the standard of a 'reasonable 15 year old girl'. Claim disallowed. Dispute: who get's to judge the standard of a 'reasonable' 15 year old girl? A 70 year old judge! |
| Give an authority that shows what standard a child in a playground accident will be held to. A reasonable man? | Orchard v Lee (2009) Facts: two 13 year olds playing tag. One of them was walking backwards and collided a teaching assistant. She suffered an injury that eventually became serious. Held: a reasonable child of that age would not have appreciated the risk, and could not be held responsible for the breach. The Teacher was called Miss Orchard and the kid was a young Lee Russell. |
| What if the child was particularly 'dim witted'? Give an authority. | McHale v Watson (1966) Australian court accepted that a child should be judged according their age, but refused to take into account any of the child’s other characteristics (e.g. that he was abnormally ‘slow-witted, quick-tempered, absent-minded or inexperienced’). The test is therefore still objective, but scaled to the child’s age. The capacity to recognise the dangers of an activity, to take care to avoid them and not hurt others varies according to the age of the child. |
| Give an authority that shows what standard a footballer who casues an injury on a pitch will be held to. A reasonable man? | In sports case you really have to look at the circumstances surrounding the claim. It's a high risk activity. Reckless disregard is required. Condon v Basi (1985) Facts: footballers playing in a 'local league'. A tackle caused a serious injury. Held: because people in sporting activities are taking risks, there is not going to be a breach found unless there is a reckless disregard for safety. Furthermore, footballers in a local league will be judged by that standard and not the standard of premiership players. All the same, reckless disregard was found. |
| How do courts ascertain what would a reasonable man do in a professional context? Are there any issues with this methodology? | They establish what is normal practice - as recommended by a professional body, standard or conduct, or the testimony of other professionals. The issue is that there are many ways to go about the same task - a differing opinions on which approaches are most effective or safest. |
| Give the primary authority for the principle that professionals are treated slighly differently to ordinary people. How is the 'reasonable man' principle applied to professional stiutaions? You use this authority as the starting point for professionals, but a case such as Hall v Brooklands Auto Racing (1933) for the ordinary reasonable man test. | The professional is expected to behave in line with a 'reasonable profession'. Thus they do not have to be the best doctor around. However, a GP and consultant may be held to different standards. Bolam v Friern Hospital Management (1957) Facts: The patient was having ECT therapy - electric shock therapy. During the proceedure he sustained fractures to his pelvis. Counsel for the claimant tried to argue the hospital should have restrained him, and thus fell below the standards of a reasonable doctor. However, council for the defendants found a number of professionals who claimed that the approach taken by the hospital was acceptable and good practice. Held: the courts will not interfere and choose one approach over the other - if there is differing medical opinion - provided that the procedure followed was accepted by a responsible body of opinion, it didn't matter whether there was an alternative course of action followed by another body of opinion. |
| Rules for professionals | Maynard v West Midlands (1984) Facts: it was unclear whether the patient had a serious condition that required a biopsy, or a less serious one that wouldn't. But, it would take a while to find out the results of the biopsy, and during that time he might deteriorate. There was another body of opinion that thought the potential side effects from a biopsy were too serious to justify the risk. Held: again, the courts did not want to interfere. |
| Give an authority that shows when the courts were willing to interfere with the professional norms of reasonable behaviour. | Re Herald of Free Enterprise (1987) Facts: Zeebrugge ferry went down with a lot of people on it. The reason it sank was that it was more convenient to sail with the bough doors open. Quicker to get cars on and off. The defendants said this was common practice in the ferry industry. Held: Courts said 'we don't care if this is common practice, it's wrong'. There was no good justification for having the doors open (for safety reasons, for example), so this defence could not be allowed. |
| The first case where courts were willing to interfere in disputed medical standards of breach - to weigh evidence as to what the risks and benefits associated with different approaches are. |
Bolitho v City and Hackney HA (1998)
Facts: A two year old child suffered severe brain damage and died after a paediatric registrar failed to attend to him. It was shown that even if the child had been attended to, he would not have been intubated. There were opposing expert opinions as to the reasonableness of the registrar's argument that, had she attended, she would not have intubated the child.
Held: Modifying Bolam test. The Court will, when evaluating that professional opinion, they will need to be satified 'directed their minds to the quesiton comparitive risks and benefits and have reached a defensible conclusion on the matter'. 1. the procedure (thought process used- sensible?) 2. defensible conclusion? It is for the judge to decide if something is manifestly unreasonable.
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| Having set the standard required of the defendant it is then necessary to see if the defendant has met that standard. In essence, this is a question of fact and degree, which requires the court to consider all the particular circumstances of the case (what happened and why?). What are the 5 general standards used to establish a breach? These apply in professional an non professional cases, but in professional cases, expert witnesses, and other evidence, are used to reach a finding. | "1) Common practice - in professional cases (Compare Bolam with Re Herald of Free Enterprise) 2) Likelihood of harm 3) Magnitude of harm 4) Cost and practicality of precautions 5) Utility of the defendants actions 6) Variations in skill between the parties. 7) Vulnerability of the claimant. " |
| How do we employ these standards to reach a decision? | It's a balancing act… Weighing the first to criteria against the second two. |
| Give an authority the shows courts finding harm unlikely, leading to the court not finding a breach. | Bolton v Stone (1951) Facts: cricketer hit a ball outside a cricket ground. Balls had only gone outside the fence 6 times in 30 years, and had never hit anyone. The likelihood of harm was very low. Held: the likelihood of harm is very important because it informs the level of precautions that are reasonable. The court held that erecting a 17 foot fence was adequate precaution considering the unlikelihood of harm. Joss Stone was playing cricket and hit James Bolton in the head. Very unlikely. Claim failed |
| Give an authority the shows courts finding harm unlikely, leading to the court not finding a breach. | Privy council case, so only 'persuasive' Wagon Mound No 2 (1967) Facts: a ship discharged oil onto water. Some building work was being carried out on the land and some sparks from the machinery ignited the oil, and damaged the property of the claimant. Held: questioned Bolton v Stone. Just because an outcome is very unlikely, this does not mean that precautions should not be taken if they are very straightforward. The ship should not have emplied oil onto the water. |
| Give an authority that contrast with Bolton v Stone, and shows when a sportsman should have taken more precautions to protect bystanders. |
Pearson v Lightning (1998)
Facts: Golfer playing a difficult shot that had landed in some tress. There was a higher than normal likelihood, that if the golfer took the shot it would rebound off the trees and hit a spectator. The golfer did and the claimant was injured.
Held: because the likelihood of harm was high, the defendant should have taken more precautions. He could have asked people to stand back, etc.
Dispute: nice to contrast with Bolton v Stone
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| Give an authority which shows courts finding adequate precautions in place to protect a school teacher from harm, even thought she did in fact, get injured. | Etheridge v East Sussex County Council [1999] Facts: school teacher, was injured when a basketball, thrown by a pupil, hit her as she was climbing some stairs. Held: Her claim against the school failed as the school had procedures and systems in place to prevent such accidents. The school was not required to give an absolute guarantee for the safety of everyone on the school’s premises. Eleanor Etheridge was the school teacher. The school was just east of Brighton (East Sussex). The basketball bouced into the sea after hitting her. |
| Give an authority where the the precaution of ensuring a contractor had insurance and safety procedures was held to be reasonable, as the risk of injury was high. | Bottomley v Secretary and Members of Todmorden Cricket Club (2003) Fact: claimant had been injured by a fireworks display on the club’s land. Held: the club was found liable. The club had engaged the services of an independent contractor to present the display, but had failed to take adequate precautions in ensuring that the contractor had safety plans and public liability insurance. Dispute: contrast with Payling v Naylor [2004] Aide: Bottomley v Todmorten Cricket Club |
| Give an authority where the the precaution of ensuring a contractor had insurance and safety procedures was not required, (as the risk of serious injury was low?). | Payling v Naylor [2004] Facts: he claimant suffered serious head injuries after being ejected from the defendant’s nightclub by a doorman employed by a security firm. The claimant alleged that the defendant had breached his duty by failing to ensure that the firm had public liability insurance cover. Held: The claim failed on the basis that the defendant was not obliged to check the contractor’s insurance position as a necessary or even just a prudent means of assessing his competence. Dispute: contrast with Bottomley v Secretary and Members of Todmorden Cricket Club (2003) |
| Give an authority that shows how courts might use statistics when estabishing likelihood of harm. | Very often courts will look at statistics when establishing the likelihood of an injury occuring. There are many websites with statistics for categories of injuries. Haley v London Electricity Board (1965) Facts: the claimant was blind, and they came across a hole in the road. London had left the hole uncovered and had only a temporary barrier in place - only a visual barrier. The defendant fell in the hole, hit his head an went deaf. The defendants said this would only affect blind people, and this was very unlikely, so no breach should be found. Held: court consulted statistics and found there were 292 blind people in Woolwich, so actually the likelihood was not that low. They found a breach of harm. |
| Give an authority that shows how the increased magnitude of harm potentially suffered by a claimant, as a result of a preexisting condition, should have lead the defendant to take greater precautions in the eyes of the court. |
Paris v Stepney BC (1951)
Facts: Mr Paris was working in a factory, despite the fact he was carrying out welding work, the factory supplied no goggles. Mr Paris was sighted in one eye, and when the factory found this out, they asked him to leave. He was serving out his notice, when a spark hit his good eye and he was blinded.
Held: The council should have found out that he had one working eye sooner, and when they did, should have supplied him with goggles. The increase magnitude of harm Mr Paris was liable to suffer, should have caused the council to take greater precautions.
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| Give an authority that shows how the magnitude of harm potentially suffered by a claimant in a dangerous sport should have lead the defendant to take greater precautions in the eyes of the court. |
Watson v British Boxing Board (2001)
Facts: Watson was knocked out by Chris Eubank. There were doctors at the ringside, but no ambulance or paramendics. It took 28 minutes for him to get to hospital and get treatment, by which time he'd suffered brain damage. There was oxygen at the ringside and they could have injected him to reduce the swelling, neither of which happened. The British Boxing federation claimed they had taken adequate precautions.
Held: the likelihood of harm, and the potential magnitude of harm were very high in boxing, thus the precautions taken should reflect this. It was found that BBB had not taken adequate precautions in the circumstances. The amount of money being made through the match was taken into consideration - it made the viability of providing these resources far greater.
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| Give an authority that gives an example of when the courts looked at what reasonable precautions a defendant might have taken, and found that the defendant had behaved in line with a 'reasonable man'. | Latimer v AEC (1953) Facts: Unusually heavy storm, and the factory floor was flooded. The defendants had some sawdust for this purpose, but not enough. They decided to carry on operating the factory as normal. The claimant, an employee, slipped and was injured. Held: the reasonable employer is not perfect, they do not obviate all imaginable risk. In this case, the only other option was closing the factory and losing a day's profit. The court held that they had taken adequate precautions in the circumstances. |
| Give an authority that gives an example of when the courts considered what resources were available, when estabilishing what reasonable precautions a defendant might have taken. | Knight v Home Office (1990) Facts: the claimant committed suicide in a prison hospital. Held: you can't judge the defendants on the standard of a well resourced medical facility - this is a prison hospital, you have to take into account that resources are limited. If you think more resources should be available, that’s a matter for Parliament. The prison officers took reasonable precautions under the circumstances. |
| Give an authority that gives an example of when the courts considered the significant utility of an action as outweighing an increased risk, involving ambulances. |
Daborn v Bath Tramways (1946) (Asquith LJ)
Facts: in wartime. LH drive ambulance, which were more dangerous.
Held: Courts took into consideration the utility of action - it was wartime and the need for ambulances justified the risk. Asquith LJ 'If all trains ran at 5 miles an hour, there would be fewer accidents, but national life would be intolerably slowed down.'
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| Give an authority that gives an example of when the courts considered the significant utility of an action as outweighing an increased risk might vary from case to case. | Ward v London (1938) Facts: a fire engine goes through a red light. Held: courts held that whether a fire engine needs to stop and look at a red light would differ from case to case. It would depend on visability / amount of traffic. It must be remembered that they are on their way to an emergency. In this case, the risk was found to be too great and liability was found. Dispute: contrast with Watt v Hertfordshire (1954) |
| Give an authority that gives an example of when the courts considered the significant utility of an action as outweighing an increased risk for the fire service. | Watt v Hertfordshire CC (1954) Facts: a fire engine was going to help a woman trapped after a crash, they needed to take lifting equipment. There usual vehicle wasn't available, so the fixed it, somewhat unsatisfactorily to another vehicle. The claimant was on the back and got injured. Held: the utility of the action justified the risk taken. Denning said 'that the goal of making profit is very different from the utility of saving life and limb'. Dispute: contrast with Ward v London (1938) |
| What standard of care are amatuer sports people held to? | Vowles v Evans Facts: amatuer rugby match. A referee who did not break up a scrum quickly enough, the defendant was injured. Held: Breach - the standard was amateur, nothing short of reckless disregard for the claimant’s safety would constitute a breach. Policy - no insurance, and defensive practices - not wanting to put amateurs off refereeing. Aide: Rugby game. The welsh have big Vowles, and the referee is Bill Evans he was busy transcribing chords and did not see the danger. |
| What standard should the defendant be held to if they had presented themselves as experts with special skill? | Greaves & Co v Baynham Meikle & Partners [1975] Facts: The claimants were contractors who had built a building to the defendants’ design and who had been held liable for the defects in it. They brought an action against the defendants, who were consultant engineers, alleging negligence in the designing of the building, and seeking a contribution towards the damages they themselves had been liable for. The issue was that the defendants had not considered the impact of vibrations caused by trucks on the fabric of the building. Held: The court held that the defendants, holding themselves out as experts, owed the standard of reasonably competent professional engineers, and that they had breached that duty. |
| Explain Res Ipsa Loquitur and give a case example for its use. | This literally means ‘the facts speak for themselves’. The maxim is used (but only rarely) in situations where the only plausible explanation for the claimant’s injuries is that the defendant has been negligent. If the maxim applies it will then be for thedefendant to adduce evidence that shows that they were not negligent. The maxim, therefore, helps claimants who have difficulty proving exactly how an accident occurred. It is essential to show that the cause of the accident was in the control of the defendant or his servants. Scott v London and St Katherine Docks & Co (1865) Facts: the claimant was injured when a number of large sacks of sugar fell onto her. She could not explain how this had occurred. Held: since the sacks were in the defendant’s control, the court was prepared to infer that the accident had been due to the defendant’s lack of care, i.e. the sacks could not have fallen by themselves. |
| Res Ipsa Loquitur only applies where the accident would not normally happen without negligence. If there could be an innocent explanation of the accident, then the maxim will not work. Give an authority that illustrates this point. | Mahon v Osborne [1939] Facts: a swab was left inside the body of a patient following an abdominal operation. Held: Res Ipsa Loquitur (the facts speak for themselves) Mahon was a man who played Cahon. George Osborne was the negligent surgeon (the facts of austerity speak for themselves - it was bad policy). |
| What's the most useless act on the statute book, and why? | Social Action, Responsibility and Heroism Act 2015. It says nothing that isn't already in common law - basically that you have to consider the utility of an action when looking at common law negligence. |
| Five tips for answering problem questions on Breach. | 1. The rules for breach involve fewer policy considerations than those for establishing the duty. 2. It is not so important to know the year of cases on breach (though chronological order is helpful) 3. Use all available facts when determining whether the defendant has fallen below the standard of care 4. Apply the balancing exercise as far as possible to the facts (eg what additional precautions could have been taken?) 5. Use common sense to conclude whether you think a reasonable man would have acted differently in the circumstances |
| Standard of care: a reasonable first aider. |
Cattley v St John’s Ambulance
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