Breach Of Duty

Front 1

Foreseeability of harm

Back 1

If the harm is not reasonably foreseeable then the defendant is not liable.

Roe v Ministry of Health [1954]

Front 2

Magnitude of the risk

Back 2

1) Is there a likelihood that harm will occur?

Bolton v Stone [1951] - Hilder v Associated Portland Cement Manufacturers Ltd. [1961]

Haley v London Electricity Board [1965]

2) How serious will the consequences be if harm does occur?

Paris v Stepney [1951]

Front 3

Burden of taking precautions

Back 3

If the burden of taking steps to eliminate a risk is far greater than the benefit obtained by it's elimination, then the failure to take those steps will not generally amount to negligence.

Latimer v AEC Ltd [1953]

Front 4

Utility of the defendants conduct

Back 4

The greater the social utility (benefit, usefulness) of the defendants conduct, the less likely it is that the defendant will be held to be negligent.

Daborn v Bath Tramways Mototr Co Ltd [1946]

Watt v Hertfordshire CC [1954]

Front 5

Common practice 1

Back 5

Failure to conform to a common practice of taking safety precautions is strong evidence of negligence as it suggests that the defendant did not do what others in the community regard as reasonable. However such a failure is not conclusive evidence of negligence.

Brown v Rolls Royce Ltd [1960]

Front 6

Common practice 2

Back 6

Where it can be shown that the defendant has complied with common practice in relation to safety precautions, this is good evidence that the defendant has not been negligent. However, a particular course of conduct may be negligent despite it being common practice.

Bank of Montreal v Dominion Gresham [1930]

Front 7

Special standards of care

Back 7

Certain types of defendants where additional special rules apply -

Children,

defendants acting in an emergency,

defendants engaged in sport,

defendants claiming to have special or professional skill.

Front 8

Children

Back 8

Judged by reference to the standard of conduct that can be expected of a reasonable child of the same age.

Mullin v Richards [1998]

Front 9

Defendants acting in an emergency

Back 9

In an emergency - 'heat of the moment situation', the standard of care is relaxed.

Jones v Boyce [1816]

Ng Chun Pui v Lee Chuen Tat [1988]

Front 10

Participants in sport

Back 10

Similar to defendants acting in an emergency. Defendants may have to make decisions in the heat of the moment and the standard of care takes this into account.

Wooldridge v Sumner [1963]

Wilks v Cheltenham Cycle Club [1971]

Front 11

Defendants claiming to have special or professional skill

(The Professional Standard of Care)

The Bolam Test

Back 11

1) The defendant will be held to the standard a reasonable person having that skill.

2) If one professional body regards the defendants conduct as proper then they will not be liable.

Front 12

Part 1 - "reasonable skilled person"

Back 12

The profession of the individual is irrelevant. The defendant is held to this standard if they have held themselves as possessing a trade or professional skill.

Phillips v William Whitely Ltd [1938]

Wells v Cooper [1958]

Wilsher v Essex Area Health Authority [1987]

Front 13

Part 2 - "common practice and professional opinion"

Back 13

There will be no liability if their conduct is in accordance with one view of responsible common practice. However this is not conclusive.

Bolam v Friern Hospital Management Committee [1957]

Front 14

Limits of the Bolam test

Back 14

Common practice itself may be negligent.

Edward Wong Finance Co Ltd v Stokes & Master [1984]

Personal belief that a particular technique is best is no defence unless that belief is based upon reasonable grounds.

Bolitho v City and Hackney Health Authority [1998]

Front 15

Disclosure of the risks of treatment

Back 15

It is for doctors to decide whether, and how much information to reveal to the patient.

Sidaway v Bethlem Royal Hospital Governors [1985]

However, when questioned, a doctor is required to answer truthfully and as fully as the questioner requires.

Chester v Afshar [2004]

It is worth noting that there are now guidelines on disclosure for doctors to follow, including being obliged to disclose small but significant risks.

Front 16

Proof of breach

Back 16

Claimant bears the burden of proving the breach of duty. However, certain circumstances have special rules which will assist in discharging this burden.

Front 17

Special rules

Back 17

Civil Evidence Act 1968s 11(1)

Res ipsa loquitur

Front 18

Civil Evidence Act 1968

Back 18

Section 11(1) - if the defendant has been convicted of a crime that involves the same facts as the civil trial then the burden of proof is then placed on the defendant, who then must prove that they did not commit negligence.

Wauchope v Mordecai [1970]

Front 19

Res ipsa loquitur

Back 19

Meaning "the thing speaks for itself"

This does not shift the burden of proof onto the defendant. It is decided on a balance of probabilities. There are three conditions for this to apply. Where this applies, the claimant need not provide evidence as to the precise way the negligence occurred.

Scott v London and St Katherine Docks Co [1865]

Front 20

The conditions for res ipsa loquitur

Back 20

1) The occurrence must be one that will not normally happen without negligence.

2) The defendant must have control of the thing that causes the harm

3) The cause of the occurrence must be unknown to the claimant.

Front 21

Condition 1 of res ipsa loquitur

Back 21

Scott v London and St Katherine Docks Co [1865]

Chaproniere v Mason [1905]

Ward v Tesco Stores Ltd [1976]

Richley v Faull [1965]

Ng Chun Pui v Lee Chuen Tat [ 1988]

Mahon v Osborne [1939]

Cassidy v Ministry of Health [1951]

Front 22

Condition 2 of res ipsa loquitur

Back 22

Gee v Metropolitan Railway [1873] compared to - Easson v London and North Eastern Ry. Co [1944]

Front 23

Condition 3 of res ipsa loquitur

Back 23

All this condition means is that where the facts are sufficiently known, the claimant can prove what actually happened.