breach of duty

• the following factors can determine if a breach of duty was reasonable:

  • allowing the D's certain characteristics to be considered, this allows the law to be applied fairly to the particular D.
  • allowing individual characteristics of the claimant to be taken into account offers more vulnerable claimants greater protection- such that of the case of nettleship v weston
• allowing individual characteristics of the claimant to be taken int account offers more vulnerable claimants greater protection, for example in nettleship v weston, it would've been unfair to mrs weston to have treated her in the same way as an experienced driver, as she was on her third lesson. however it could be said that there is a policy reason for this. every driver, whether a novice or very experienced driver has some form of insurance cover- so the experience or lack there of, of the driver shouldn't be a reason for an insurance company to not pay out.
• In Paris v Stepney Borough Council, it was cheap and straightforward for the defendant council to provide Mr Paris with goggles or other protective equipment; it was known that the claimant was vulnerable and needed protection for his job, which he was expected to do
• Considering the size of the risk, and the practicality of eliminating it means that in certain circumstances that avoiding the risk is not onerous for the defendant.
• In bolton v stone, it was considered that the cricket club had done everything they could do in view of such a small risk--- however, this was unfair on the claimant who was left without any compensation for her injuries. Attitudes have changed since the decision, and nowadays the club would be liable because passersbies deserve more protection.
• with a greater emphasis on health and safety, working sites now have more barriers to protect all passers-by from injury. the courts will also consider whether all appropriate precautions have been taken by the defendant and balance this against the cost and effort of taking the precautions.
• In latimer v AEC, it was considered reasonable for the factory to spread sawdust over a previously flooded factory floor for production to restart. Again, with greater emphasis on health and safety, employers would now be required to take greater precautions to protect their employees.
• it is fair that there should be no liability for a risk has to be taken when there is the benefit to society is greater than the potential harm
• in both watt v hertfordshire county council and day v high performance sports it was essential for the defendants to act quickly.
• in emergency situations, it is possible that corners will be cut and procedures will be overlooked as speed is of the essence. it wouldn't be fair to penalize a defendant in the situation if the life of an accident victim is at stake like in the case of Watt v Hertfordshire county council
• it is fair that a defendant is judged against what is common practice and the knowledge of the time, especially in medical or scientific areas, where developments and changes in practice can take place in a short time
• in roe v minister of health, it wouldn't be fair to the health authority for them to be held liable fort the contamination of a glass test tube if the reason for it wasn't known when the injection was administered. there were lessons learned as with any medical procedure so that the same mistake wouldn't occur again
• Doctors during the coronavirus pandemic in 2020 treated patients when the virus first came to light- they should be treated legally according to the knowledge that was available at the time. lessons were quickly learned during the first wave of infection in the spring and procedures were developed for treating patients in the second wave of infection in the autumn of 2020.
• on the other hand, what is reasonable is an objective question which could operate unfairly against the defendant. the law doesn't take account of a defendant's actual experience, just the standard skill that is expected at that level
• A claim may be defeated if a defendant's actions are considered reasonable even if others ion the same profession have differing opinions about the same actions taken
• for many years, the common practice as set out in the case of bolam v frien barnet Hospital Management Committee, allowed professionals to set their own acceptable standards, and opinions within that profession could've differed but were still acceptable. This approach meant that claims would be easier to defeat but marginal or experimental practice coudve been deemed acceptable if some doctors approved of it.
• the test set by bolam v frien barnet hospital management committee was modified for the giving of consent by the decision in Montgomery v larnarkshire health board. as a result of this case, a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatments and of any reasonable alternatives or variant treatments.