Tort of Negligence (Breach of Duty- EXAMPLES)

Tort of Negligence (Breach of Duty- EXAMPLES)

1. Omission to do something which a reasonable man would; doing something which a prudent(acting with or showing care and thought for the FUTURE) and reasonable man would not do

   • REASONABLE MAN
     • Risk A reasonable person would consider the possible risk when deciding to act in a certain way and in determining the standard of care required. The magnitude of risk should be considered. This means taking into account the likelihood that the defendant's conduct could cause damage or injury and how serious that damage or injury would likely to be.
     • MAGNITUDE OF RISK: In looking at risk, the likelihood of injury or damage should be considered. Generally, the less likely injury or damage may be caused, the lower the standard of care required.
       • BOLTON V STONE [1951] AC 850 FACTS: The plaintiff was hit by a cricket ball which came from the defendant's cricket club. The cricket ground had a five metre high protective fence. Only approximately six balls had been hit out the ground in a number of years and there had never been any injuries caused. ISSUE: Did the risk mean that the defendant had breached their duty of care? HELD: The risk of injury caused by a ball being hit out of the ground was minimal, the defendant had taken preventative measures and a reasonable person would not have anticipated the injury caused. Therefore, the defendant had not breached the duty of care as it had reached the standard of care required.
       • MILLER V JACKSON [1977] QB 966 FACTS: The plaintiffs house was damaged on several occasions by cricket balls from the defendant's cricket club. Approximately six to ten balls were hit out of the ground each season, despite the defendant erecting a five meter protective wall. ISSUE: Did the magnitude of the risk mean the defendant had breached their duty of care? HELD: The defendants were in breach of the standard expected of the reasonable person. The frequency of the problems meant that the defendant should have taken more steps to stop the cricket balls. The risk was much greater in this case than in Bolton v Stone [1951].
       • However, it may not always be reasonable to ignore a small risk.
         • HALEY V LONDON ELECTRICITY BOARD [1965] AC 778 FACTS: The plaintiff a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by the defendant. The hammer was left to warn people that a hole had been dug in preparation for underground work, which was common practice at the time. ISSUE: Did the magnitude of the risk mean the defendant had breached their duty of care? HELD: The House of Lords found that it was reasonably foreseeable that unaccompanied blind pedestrians may walk that route and therefore the defendant should have taken extra precautions. The reasonable person should not ignore the risk to blind pedestrians, especially due to the gravity of the potential injury and the limited cost of more robust precautions
     • Seriousness of injury or damage The seriousness of possible injury or damage caused should also be taken into account by a reasonable person. The more serious the potential injury, the greater the standard of care required. Similarly, if the defendant is aware that a particular individual is at an enhanced risk of serious injury, this too increases the obligation to take care
       • PARIS V STEPNEY BOROUGH COUNCIL [1951] AC 367 FACTS: The plaintiff had an accident in which he lost his sight in one eye, while working as a mechanic for the defendant, a local authority. Prior to the incident, the defendant knew that the plaintiff was already blind in one eye. The injury may have been prevented if the plaintiff had been provided with protective goggles to wear at work. ISSUE: Did the defendant's knowledge of the plaintiff's existing disability increase the standard of care required? HELD: The House of Lords found that the probability of the injury occurring was very small, but its consequences were very serious. Therefore, the defendant should have taken extra care to provide goggles for the plaintiff.
     • Precautions The courts will consider the cost and practicality of measures the defendant could have adopted in order to prevent the injury or damage. The defendant is likely to have acted unreasonably if the risk would have been substantially reduced at a low cost and the defendant failed to take the necessary precautions. However, if the precautions would only produce a very limited reduction in the risk and cost a lot, then a defendant is more likely to have acted reasonably. Essentially, the greater the risk of injury, the greater the requirement to take precautions. A lack of resources is not usually accepted as defence for the defendant failing to exercise reasonable care.
       • LATIMER V AEC LTD [1953] AC 643 FACTS: The plaintiff injured his ankle after slipping on an oily floor in the defendant's factory. The oily floor was due to water damage from an exceptionally heavy storm. The defendant had put up warning signs, informed staff of the dangers and used all available sawdust and sand to soak up liquid. ISSUE: Had the defendant taken all necessary precautions? HELD: The defendant had taken all reasonable steps to prevent an accident in the circumstances. The only alternative would have been to close the factory, which was not a practical or reasonable solution.
       • HALEY V LONDON ELECTRICITY BOARD [1965] FACTS: The plaintiff, a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by the defendant. The hammer was left to warn people that a hole had been dug in preparation for underground work, which was common practice at the time. ISSUE: Could the defendant reasonably have taken more precautions? HELD: The House of Lords found that further precautions, for example erecting a fence around the hole would have significantly reduced the risk of injury at a low cost. The defendant had not taken all practical precautions and therefore was in breach of the standard of care required.
     • A skilled defendant will be required to carry out a task to the standard of a reasonable skilled person.
       • FACTS: The plaintiff was a baby that had been left blinded by treatment in the defendant's hospital. The plaintiff was born prematurely and a junior doctor had negligently administered excess oxygen, which caused the injury. ISSUE: What is appropriate standard of care for a junior doctor? HELD: The House of Lords agreed with the Court of Appeal finding that the defendant had fallen below the required standard of care. A junior doctor is expected to show the level of competence of any other doctor in the same job. A patient's legitimate expectation of competent treatment is not altered by the experience of the doctor. An inexperienced doctor should ask for expert assistance if the task is beyond his ability

2. RES IPSA LOQUITUR "the facts speak for themselves"

   • Lightens plaintiff's burden of proving that the defendant was negligent
   • 1) when the plaintiff does not know or cannot reasonably be expected to know the cause of the accident or damage
     • 2) Thing causing the damage or accident was under the control of the defendant
       • 3) Damage or accident is one that does not ordinarily occur unless there is negligence on the part of the defendant
   • if successfully invoked-> court would infer negligence
   • UNLESS the defendant is able to manages to show that there could be some other reasonable explanation for the accident besides his negligence or that he had taken reasonable care
   • EXAMPLES
     • a load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian's injury even though no one saw the load fall.
     • While under anesthetic, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips," and find it a handy shorthand for a complex doctrine.