Breach of Duty

• Definition) Blyth v Birmingham Waterworks Co :

  Negligence is an omission to do something that the reasonable person would do or doing something that the reasonable person would not do.
• The courts will look at the following three-part test to establish if the defendant breached their duty of care:

  • Did the D act like the reasonable person
  • The characteristics of the defendant
  • Risk Factors
• Reasonable Person) Wells v Cooper :

  The reasonable person is the ordinary person in the street, doing the same job as the defendant.
• Characteristic 1 - Professionals) Bolam :

  Did the D act in the same way as the reasonably competent professional doing the same job? Would the professional body agree with the D's conduct?

• Characteristic 2 - Learner) Nettleship v Weston :

  Did the learner act in the same way as the reasonable competent professional, doing the same job as them and NOT the reasonable learner.
• Characteristic 3 - Children) Mullins v Richards :

  Did the child act in the same way as the reasonable person who is the same age as them?
• Risk Factors can higher or lower the standard of care owed to the claimant.
• RF 1 - Special Characteristics of the claimant) Paris v Stepney :

  If the C has a disability or illness or arguably their age that is known to the D then they are expected to take more care around them because they know this factor.
• RF 2 - Taking Practical Precautions) Latimer v AEC :

  If the defendant has taken all practical precautions against injury, then a lower standard of care will apply, and they will not breach their duty of care.
• RF 3 - Size of Risk) Bolton v Stone :

  If there is a small risk of injury in the situation a lower standard of care will be owed by the defendant.
• RF 4 - Public Benefit) Day v High Performance Sport :

  If there is a public benefit of the defendants actions and this benefit outweighs the risk of injury then a lower standard of care is owed.
• Evaluation point 1) Judicial Creativity :

  Judges have largely created the law relating to breach of duty through common law, resulting in change and development over time.

  
  

  Judges can keep the law up to date more accurately and quicker than Parliament. Parliament take up to or over a year to make new laws. So judges can create new laws to match new technology e.g. medicine or drones.
• Evaluation point 2) The rules are fair to the claimant :

  The test comparing the D against the reasonable man, provides justice for the C as it encourages caution and a higher standard of care.

  
  

  Risk factors are higher when there is a need to, for example, special characteristics make the standard higher. This requires a higher standard from the D which is ultimately fair on the C.
• Evaluation point 3) The law is applied inconsistently :

  There are four different standards of care which could apply to a scenario.

  
  

  Is it reasonable that we have different standards, could we compare children to adults? It is not always obvious which to apply, for example, a 17-year-old apprentice could be a learner and a child.
• Evaluation point 4) The Cost :

  Proving fault can be costly for the claimant which can cause some people not to try and seek justice.

  
  

  This is because evidence is required to prove liability, in addition to this expert witnesses might also be needed which is another large cost. So justice is not available for everyone.