Negligence - Breach of duty and Causation
Breach of Duty
Issue of breach involves a two-stage test:
1. Court first assesses how the defendant ought to have behaved in the circumstances
(what standard of care should be had).
2. Whether defendants conduct fell below this standard of care.
Reasonable person test - negligence is the omission to do something which a reasonable
man would do, or something a prudent and reasonable man wouldn’t do. objective and
impartial test.
Skilled defendant -[Bolam]- established principle that someone who exercises a special skill
will be held to a higher standard than the average person without that skill - also as long as a
defendant’s actions are supported by a body of professional opinion it is not negligence
Unskilled defendant - If they are undertaking a task that requires that skill, whether or not
they posses it, they are held to same standard as competent person within that field.
Relevant factors in achieving the Standard of care
In determining this the courts will assess a) the risk created by the defendants’ activities and
b) the precautions the defendant ought to have reasonably taken. Foreseeability:
Magnitude of risk = how likely was the injury and how serious was it likely to be
likelihood of risk = how likely was the risk to have happened.
Cost and practicality of precautions = how reasonable were the preventative options
Defendants purpose = of this was done in the process of saving a life then it may be
excused. (Unskilled volunteer rescuer).
Common practise = does it comply with acceptable practise in their trade.
Proving breach of duty:
Witness of fact = people who saw what happened.
Expert witness = people who can attest to what a normal practise should have been
Previous conviction of the same sort - doesn’t prove it but shifts burden of proof onto
the defendant.
Res Ipsa Loquittur ‘The thing speaks for itself’ - circumstances may be such that court
can determine negligence without evidence.
Causation
First step is factual causation beginning with the ‘but for’ test which stipulates that ‘can it
be said but for the defendants breach of duty the claimants harm would not have occurred?’
[Barnett] - claimant turned away from hospital and died of arsenic poisoning but would have
died regardless so doctor wasn’t the cause.
Breach of Duty
Issue of breach involves a two-stage test:
1. Court first assesses how the defendant ought to have behaved in the circumstances
(what standard of care should be had).
2. Whether defendants conduct fell below this standard of care.
Reasonable person test - negligence is the omission to do something which a reasonable
man would do, or something a prudent and reasonable man wouldn’t do. objective and
impartial test.
Skilled defendant -[Bolam]- established principle that someone who exercises a special skill
will be held to a higher standard than the average person without that skill - also as long as a
defendant’s actions are supported by a body of professional opinion it is not negligence
Unskilled defendant - If they are undertaking a task that requires that skill, whether or not
they posses it, they are held to same standard as competent person within that field.
Relevant factors in achieving the Standard of care
In determining this the courts will assess a) the risk created by the defendants’ activities and
b) the precautions the defendant ought to have reasonably taken. Foreseeability:
Magnitude of risk = how likely was the injury and how serious was it likely to be
likelihood of risk = how likely was the risk to have happened.
Cost and practicality of precautions = how reasonable were the preventative options
Defendants purpose = of this was done in the process of saving a life then it may be
excused. (Unskilled volunteer rescuer).
Common practise = does it comply with acceptable practise in their trade.
Proving breach of duty:
Witness of fact = people who saw what happened.
Expert witness = people who can attest to what a normal practise should have been
Previous conviction of the same sort - doesn’t prove it but shifts burden of proof onto
the defendant.
Res Ipsa Loquittur ‘The thing speaks for itself’ - circumstances may be such that court
can determine negligence without evidence.
Causation
First step is factual causation beginning with the ‘but for’ test which stipulates that ‘can it
be said but for the defendants breach of duty the claimants harm would not have occurred?’
[Barnett] - claimant turned away from hospital and died of arsenic poisoning but would have
died regardless so doctor wasn’t the cause.
