element two - breach of duty

• element two breach of duty

  the claimant has to show that the duty of care has been breached. the standard is objective and from a reasonable persons point of view. for example if the defendant is a doctor the court will consider how a reasonable doctor would have acted
• Bolam - professionals 1957

  the claimant had a mental illness and received electric shock treatment. he signed a consent form but was not given the information that the risk of broken bones was there. he got a broken pelvis because of this and the court decided that the hospital were following courses of action so no duty had been breached. the test to decide if d breached their duty was does d fall below the reasonable persons standard of that duty
• nettleship - learners 1971

  Mrs Weston agreed with mr nettleship that he could give driving lessons. she was on her third lesson with him and failed to straighten the car after turning the corner. she hit a lampost and hurt mr nettleship. She was judged on the standard of a competent driver and not the standard of an unexperienced learner driver. because of this, she was guilty of abh
• Mullins - children 1998

  two 15 year old girls were play fighting with rulers. One ruler snapped and went in the other's eye causing her to go blind. they were judged against the standard of another reasonable 15 year old girl and were therefore not liable for the damage caused
• orchard - children

  a 13 year old was playing tag and injured a dinner lady. he was judged by the standard of another 13 year old and not that of an adult and was therefore not liable for the injury
• what are risk factors?

  when considering if the duty has been breached the court takes into account certain risk factors. it considers if the reasonable person would have taken more or fewer risks in the situation
• what are the risk factors in negligence?

  claimants' special characteristics - size of the risk - adequate precautions taken - awareness of risk at the time of the incident - public benefit in taking the risk
• special characteristics - Paris 1951

  mr paris was known to be blind in one eye. he was given work by employers that had a slight risk of injury to the eye. he was not given protective goggles and a shard of metal flew into his eye causing him to go fully blind. it was decided by the courts that the employers had broken his duty of care to him because his characteristics did not influence the end result
• size of the risk - Bolton 1951

  a cricket ball hit a passerby in the street outside a cricket club. a 17 foot high fence was surrounding the field to prevent balls from escaping. because of this, it was decided that the cricket club responded adequately and that the size of the risk was not major so they were not liable for the claimants injuries
• adequate precautions - Latimer 1953

  a factory became flooded causing the floors to be slippery. because of this the managers called off work and spread sawdust across to prevent slipping. despite this one worker slipped and got injured. it was decided that the businesses to adequate precautions to protect from the risk of danger so they were not negligent and did not breach their duty of care
• knowledge of risk - roe 1954

  anesthetic tubes were kept clean without knowledge that they contained cracks. because of this cleaning solution entered and contaminated the medicine within it. the court decided that the hospital was not liable because the risk of contamination was not known so the claimant could not claim compensation
• public benefit - watt 1954

  the claimant was a firefighter who was trying to help a woman in a car crash. the necessary equipment was not in the truck causing the car to injure the claimant. the court decided there was no breach of duty of care because the emergency outweighed the need to take precautions