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Duty Standard And Breach Notes

GDL Law Notes > GDL Tort Law Notes

Updates Available  

A more recent version of these Duty Standard And Breach notes – written by Cambridge/Bpp/College Of Law students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Revision: Tort

[STANDARD OF CARE AND BREACH The Standard of Care General Rule: The reasonable man Alderson B in Blyth v Birmingham Waterworks: 'reasonable man, guided open those circumstances which ordinarily regulate the conduct of human affairs' Vaughan v Menlove: defendant built a haystack on land adjoining the claimant's property: poor ventilation so it set alight and caused damage to the claimant's land - defendant had been warned about possibility of this happening but had ignored it - he was found liable - a reasonable person would not have taken the risk Who is the reasonable man?
Greer LJ in Hall v Brooklands Auto Racing: 'the man in the Clapham Omnibus ... the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves'

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Objective standard employed as a tool by the courts

No allowance for lack of experience: Nettleship v Weston: learned driver judged by the standard of the ordinarily competent driver - no allowance for lack of driving experience

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Why? Denning - practical reasons: - Insurance; would have different standards according to degree of competence - inexperience would be used as an excuse

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Standard of Care: not absolute - a person doesn't have to do everything possible to prevent harm o

Etheridge v East Sussex County Council : C (a school teacher) - injured when a pupil hit her with a basketball , her claim vs. the school failed as the school had procedures and systems in place to prevent such accidents. School was not required to give absolute guarantee for the safety of everyone on the school's premises

But: whilst in essence the standard is OBJECTIVE - there are often strong SUBJECTIVE influences in fixing the level of that standard - court must consider what could reasonably be expected of the hypothetical man performing the act in the circumstancesGlasgow Corporation v Muir: application of a subjective elementLeads to the court imposing a higher or different standard of care on the defendant when considered appropriate 1

Revision: Tort

[STANDARD OF CARE AND BREACH

The Professional standard Based on what reasonable professional in that field would have done - rather than reasonable man on the Clapham Omnibus

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Bolam v Friern Hospital Management Committee: the liability of a doctor administering electroconvulsive therapy was considered 'it is sufficient if he exercises the ordinary skill or an ordinary competent man exercising that particular art'

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Sidway v Governors of Royal Bethlem Hospital: regards to the warning of a risk in medical treatment (10%)

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Professional negligence not a separate tort - but a particular area where ordinary common law negligence operates - difference is the standard of duty adopted and therefore, how a breach is determined

The Lower Standard

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The courts are reluctant to accept a lower standard than that of the ordinary man - but for children it will be for a reasonable child of the defendant's age o

McHale v Watson: took into account the age but none of the other characteristics of the child (e.g. abnormally slow-witted)

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Mullin v Richards: both defendant and claimant were 15 - 'play fight' - piece of plastic broke off - held that two schoolgirls could not reasonably have foreseen any significant risk of the likelihood of injury

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Lower standard not applied to adults regardless of inexperience due to need for easily ascertainable standard: Nettleship v Weston - Lord Denning : DOC 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose act is in question'

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Wilsher v Essex Area Health Authority: junior doctor judged by the standard of the reasonable doctor in that field - standard is tailored to the activity - not to the level of experience

Problem cases: Sometimes unclear what standard to apply

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