Negligence - Breach of Duty

• Once shows that duty of care is owed, claimant has to prove that duty of care has been broken.
• The standard of care the defendant needs to show is objective. Is the standard of reasonable man, as described by Baron Alderson in Blyth v Birmingham Waterworks Co.1856.

  Reasonable person is ordinary person performing task competently (Wells v Cooper)
• Court will first have to consider whether D falls into one of these "class of persons"

  • Learners
  • Children and Young People
  • Professionals
• Learners:

  • Nettleship v Weston 1971
  • Leaners are held to same standard as a reasonable qualified person
  • This case involved a learner driver who injured their passenger.
• Children and Young People:

  • Mullin v Richards 1998
  • Children are held to the standard of a reasonable person of their age.
  • This case involved two 15 year old's play fighting with a plastic ruler, injuring one of them.
• Professionals:

  • Bolam v Friern Hospital Management 1957
  • Professionals are held to a HIGHER standard of care - e.g. the reasonable doctor, not just the reasonable person.
  • The courts should ask 2 questions:

  1. Does D's conduct fall below that of the ordinary, competent member of that profession?
  2. Is there a substantial body of opinion within that profession who would support D's actions?
• Professionals:

  • Montgomery v Lanarkshire Health Board 2015
  • In medical cases, patients need to be advised of all possible risks
• Professionals:

  • Refer to careers that need qualifications.
  • Being judged against those with specific skill is NOT THE SAME as being judged against professional using Bolam.
  • The Bolam test should only be used for "experts" like doctors.
• Risk Factors:

  • When court considers whether there has been breach of duty, it will take into account certain risk factors o decide whether the standard of care should be raised.
• Risk Factors:

  1. Size of Risk
  2. Special Characteristics of Claimant
  3. Emergency Situations
  4. Precautions Taken
• Size of Risk:

  • Bolton v Stone (1951)
  • A cricket club were not liable for an injury when a ball was hit outside of the grounds as this had only happened 6 times in 30 years (so low risk)
  • Therefore smaller risk leads to LOWER STANDARD OF CARE
  • Haley v London Electricity Board (1965)
  • There was higher risk of injury blind pedestrians when group of workers left trench open without barriers during lunch break near home for blind.
  • This higher risk lead to a HIGHER STANDARD OF CARE.
• Special Characteristics of Claimant:

  • Paris v Stepney Borough Council (1951)
  • Claimant had already lost sight in one eye so their employer owed them a HIGHER STANDARD OF CARE to ensure no further loss of sight.
• Emergency Situations:

  • Day v High Performance Sports (2003)
  • When rescuing stranded climber incorrect steps were taken leading to climber to fall down the indoor wall.
  • However, this was in an emergency situation there was a LOWER STANDARD OF CARE allowed as the need for urgency was more important.
• Emergency Situations:

  • Social Actions, Responsibility and Heroism Act 2015:
  • s.2 -> court must consider if person acting negligently did so because they were "acting for the benefit of society or any of its members"
  • s.3 -> asks if the person "demonstrated a predominantly responsible approach" towards safety of others - in which case they have met the standard of care.