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Breach of Duty
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Lecture notes of 11 pages for the course Law of Tort at UoS (Breach of Duty)
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Negligence - Breach of DutyThe Elements of Negligence
Duty of Care.
Breach of Duty.
Causation (damage caused by the breach).
What is the Connection between ‘Breach of Duty’ and ‘Standard of Care’?
Duty of care is different to standard of care.
Introducing Breach
‘Accidents happen, and sometimes they are what can be described as pure accidents
in the sense that the victim cannot recover damages for the resulting injury because
fault cannot be established. If the law were to be set a higher standard of care than
that which is reasonable…the consequences would quickly become inhibited. There
would be no fetes, no maypole dancing and none of the activities that have come to
be associated with the English village green for fear of what might conceivably go
wrong’. – Cole v Davis-Gilbert and others (2007) EWCA 296 (36) (Scott-Baker LJ).
Breach Cases
‘Decisions on breach are not citable as authorities; they are merely illustrations of
the application of the indubitable rule that if one is under a duty at common law
such care must be taken as is called for in all the circumstances’ – T Weir, An
Introduction to Tort Law (OUP, 2006) 57.
Cases are useful if faced with a situation (e.g. client or exam question) where the
facts are sufficiently similar.
The Nature of Breach
A matter of judgement rather than the strict application of legal rules.
‘It cannot be proved that a person was negligent; one can merely argue that a
person was negligent and hope to persuade the judge’. – P Cane, Atiyah’s Accidents,
Compensation and the Law (7th edn, CUP, 2006) 37.
Matter of Judgement?
How ought defendant to have behaved, i.e. what standard of care should have been
exercised? (Question of Law).
Did defendant’s conduct fall below his standard? (Question of Fact).
Reasonable Man/Person
, ‘The man on the Clapham omnibus’ – Hall v Brooklands Auto-Racing Club (1933) per
Greer LJ at 224.
‘A traveller on the London underground’ – McFarlane v Tayside Health Board (1999)
per Lord Steyn at 82.
Objective Element: it is not the judge themselves that makes the decision about
what is reasonable, it’s this hypothetical person chosen at random. (‘the man on the
Clapham omnibus’; ‘the traveller on the London underground’).
Subjective Element: the judge bringing elements of their personality for bringing life
to the reasonable man/person. (What personal characteristics does the judge have
in mind for the RM- gender, race, religion, social class? Is the RM test any more than
a vehicle for judges to apply their concept of reasonableness?)
‘The standard of care is not a standard of perfection’ – Donoghue v Stevenson (1932)
AC 562, 580 (Lord Atkin).
Horsey & Rackley (6th ed p219) note that some scholars argue that not just linguistics
but the RM in fact embodies a male point of view.
Behaviour of the RM not based upon statistical evidence, rather conjured up by
judges who, historically, have mainly been white, male, older and from higher social
classes.
It may be ‘dangerously misleading’ simply to switch to using ‘reasonable person’ as
that could attribute ‘false universality to what is in fact a partial and loaded
standard’. – Horsey & Rackley 6th ed p230, citing Conaghan 1996.
Is it Realistic for the Law to Seek to Apply the Same Standard of Care to Everyone?
Nettleship v Weston (1971) 2 QB 691 (CA).
The defendant was a learner driver. She was taking lessons from a friend. The friend
checked that the defendant's insurance covered her for passengers before agreeing
to go out with her.
On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to
straighten the wheel but Mrs Weston panicked and failed to straighten the wheel.
She approached the pavement and Mr Nettleship grabbed the handbrake and tried
to straighten the wheel but it was too late. She mounted the pavement and hit a
lamp post. Mr Nettleship fractured his knee.
The defendant argued that the standard of care should be lowered for learner
drivers and she also raised the defence of volenti non fit injuria in that in agreeing to
get in the car knowing she was a learner, he had voluntarily accepted the risk.
A learner driver is expected to meet the same standard as a reasonable qualified
competent driver. Volenti did not apply as he had checked the insurance cover which
demonstrated he did not waive any rights to compensation. His damages were
reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to
reflect the degree to which he was also at fault.
Standard of Care: reasonably competent or experienced, qualified driver?
Reasons: Variable standard? ; Moral blame? ; Insurance.
Salmon LJ (dissent) – ‘prudent beginner’.
Birch v Paulson (2012) EWCA Civ 487.
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