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Breach of Duty What is the test? Breached the duty of care if you have behaved unreasonably.

Two main sets of questions about this test: o Objectivity of the standard of care that you owe o How actually would a reasonable person have acted? Must behave as a reasonable person: the reasonable man is presumed to be free from over apprehension and over competence. Particular mental state is not relevant in determining whether you are behaving reasonable: o Nettleship v Weston [1971]: C was driving instructor and D was his pupil On one of first lessons, she drove into a lamppost Was he to be held at the standard of the reasonable experienced driver or the reasonable learner driver. Held at standard of reasonable experience driver Denning: morally driver is not at fault, but legally she is liable because the question is about the appropriate distribution of the risk between the two people D was insured and C was not so Denning though it wouldnt cause D any harm Has D wronged C?

If you knowingly undertake an activity which you are not capable of doing to a reasonable standard, it seems fair that you can be held liable to a higher standard of care. When does the law make exceptions to this basic standard: o First rule if I profess to have a particular skill, then I will be held to the standard that I profess Philips v Whiteley (William) Ltd [1938] D was a jeweller and washed his hands in basic disinfectant before piercing Cs ears, which then become infected Was he to be held liable to the standard of the reasonable jeweller or that of a reasonable doctor Held to the lower standard because the judge said I do not think a jeweller holds himself out to the standard of a surgeon. Conflicts with Nettleship as D didnt hold herself out to have the abilities of an experience driver. One difference is that, in the present case, C is trying to say that D should be held liable to a completely different professional standard. If you dont hold yourself out to have a special skill, you will be held to a normal standard. To what extent does the law take into account the persons age? Mullin v Richards [1998] Two children playing with rulers and got splinters Could not have reasonably foreseen that ruler would have caused splinters Orchard v Lee [2009] Two children playing tag in playground, one child got hurt so she sued Held, child who hurt C was not liable, because if she was to have breached a duty of care, it must have been that she was playing tag of a significant degree outside the norm. Will the defendants elderlies be taken into account?

To what extent does the law take disability into account?

Mansfield v Weetabix Ltd [1998] D drove truck into window of C because he was suffering from low bloody sugar so his powers of judgement and control were affected. This condition WAS taken into account. The court made some interesting remarks as to the extent this could be taken: o Must show D was a complete automaton? No, enough that you have significant diminution in powers of controls. o He didnt know of the condition, whereas in Nettleship she knows that she is a learner so is subject to mistakes.

What is behaving unreasonably? When you could easily take some precaution, which is cheaper than the expected losses from the result of not taking the precaution. If the burden of taking precautions is lower, you will be negligent. o Timing: Roe v Minister of Health [1954]: C had surgery at Ds hospital, which involved a spinal operation with a chemical stored in little glass vials. Outside the chemical was another, which must not come into contact Vials had little cracks in them and if chemicals react, it can cause paralysation: this happened. Risks of this happening was completely unknown at the time MUST judge according to the standards of the time at which you acted. Probability of harm Bolton v Stone [1951]: Cricket ball travelled 100yds before hitting C, gone over this fence 6 times in 30 years Negligent in not providing a higher fence Standard of the ordinary careful man, does not take precautions against every risk: only those which are reasonable likely to happen. Foreseeable only has a bare possibility. Must be a real possibility, Had the risk been other than extremely small he would have decided differently The Wagon Mound (No 2) [1967]: oil spread across harbour dock manager saw oil and asked if it was alright to continue works engineer said it was fine to continue D was held liable Reid LJ held that there was one category where the risks where entirely far fetched and another where the risks where quite substantial. Bolton v Stone fell somewhere between these two, in that case there was no negligence, but the only way of preventing that type of injury would be to shut down the cricket ground In this case you have a very small risk in which there is no public value 3 categories: o far-fetched risks , which the reasonable person does not have to take precaution against o small risks, whether its negligent to take a risk depends on the circumstances of the case o particularly substantial risk, where D will reasonably be negligent

Gravity of risk taken: The Wagon Mound (No 2) [1967] C was blind in one eye Was doing work in garage of D

Sued D for not providing care Gravity of risk can tip grounds- did not

Cost of precautions: Latimer v AEC Ltd [1953]: C was employee of D After rainfall, factory became flooded and the water mixed with oil making the floor very slippery Lots of sawdust was on hand to spread round, but there was not enough to cover the small part where C worked Negligent: should have shut down factory (would have cost a lot of money) HL said it was not negligent to not shut down the factory Had the risk been a bit bigger, there might have been a different result.

Context: Wooldridge v Sumner [1963]: Simple error of judgement taken under conditions of stress in the context of sporting activity does not count Diplock LJ if you recklessly disregard aspect of safety, that will count towards behaving unreasonably. Doesnt have to be subjective recklessness Young boys throwing bark at each other- in simple examples of horseplay, the behaviour doesnt come anywhere near the context of recklessness or negligence.

Professional standards: Bolam v Friern Hospital Management Committee [1957] as long as doctor can point to one body of a responsible medical position, he is not liable. Bolitho v City and Hackney Health Authority [1998] whether the decision not to incubate a child was negligent or not, in determining that question the Court made a slight qualification to the Bolam test. Medical opinion has to have a logical basis, and cannot be based on fundamental mathematical errors. Doctor must have weighed up all of the relevant risks associated with that procedure- if they fail to do so, then their opinion becomes shaky. This case can be seen as a concretisation of what is seen in Bolam.

Moy v Pettman Smith (a firm) [2005] lawyers advising on whether claimant should settle the case or not. Basic allegation against her was that she did not explain her reasoning against her client. HL said she was not negligent, which would suggest that the standard is quiet high. Also made some interesting remarks as to whether expert evidence has to be collected Lord Hope said there must be evidence as to what the reasonable barrister would have done in that position, because we, as judges must not justify our own standards. Baker v Quantum Clothing Group Ltd [2011] UKSC 17 (industry regulations) D was following industry practise relating to appropriate noise level in factor and this had been published by the Secretary for Employment and it stated the defendant is following a certain practise- as long as its reasonable to follow, then there is no advantage.

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