Breach of Duty Model Answer

• As a duty of care has been established, it must be considered whether the defendant (NAME) breached their duty of care to the claimant (NAME). To prove that someone has breached their duty of care it must be proven that their actions fell below the standard of a reasonable man performing the particular task, as asserted by Judge Alderson B in the case of Blyth v Birmingham Waterworks. He is expected to perform reasonably competently: Wells v Cooper.
• This is an objective test meaning that if the D acted as the reasonable man would have in undertaking his duty of care then he will not have breached his duty whereas if the reasonable man would have done more than D did then he will be in breach of his duty.
• This duty of care is different for professionals who are expected to act as other professionals would in undertaking their DOC as in the case of Bolam v Friern Barnet HMC where a doctor was not in breach as other doctors would have done the same thing. For learners, they will be in breach of their DOC if they don't do what a qualified person would do so for instance a learner driver is expected to reach the standard of a qualified driver (Nettleship v Weston).
• For children, they are judged by the standard of another child their age as seen in the case of Mullins v Richard where D was compared to another 15 year old rather than the reasonable adult.
• When the court considers whether there has been a breach of duty, it will take into account certain factors to decide whether the standard of care should be raised or lowered and asks the question 'would the reasonable person take more or fewer risks in the situation.'
• One risk factor which will be taken into consideration is special characteristics of the claimant. If the D knows that they have a characteristic which makes them more vulnerable, for example in Paris v Stepney the C was partially blind, then there is a higher standard of care owed to that person by the reasonable man. So in this case the D was expected to provide goggles to C even though this wasn't expected for all other workers.
• The magnitude/size of the risk will also be considered. If there is a high risk then a higher standard of care would be needed. In Bolton v Stone, the risk was very low so the standard of care was reduced.
• The courts will also consider the balance of the risk against the cost and effort of taking adequate precautions to eliminate the risk. In Latimer v AEC, the standard of care was reduced when all practical precautions were taken (putting up warning signs, spreading sand and sawdust and communicating to staff about the slippy floor).
• Whether the risk is known will also be taken into account by the courts. If the risk of harm is not known then there can be no breach: Roe v Minister of Health.
• Finally, the benefits of the risk will be considered. If there is an emergency then greater risks can be taken and a lower standard of care expected: Watt v Hertfordshire County Council.