NEGLIGENCE – BREACH OF DUTY OF CARE
BREACH OF DUTY OF CARE
Once established a duty exists, then see whether D is in breach of that duty
C must establish a breach of duty
Breach occurs where D fails to conform to the standard of a reasonable person
Reasonable person described as the ‘main in the street, the man who takes the magazines at
home and in the evening pushes the lawn mower in his shirt sleeve’
OBJECTIVE standard of care
Bolton v Stone [1951]: Miss Stone injured by a cricket ball that hit her, action against cricket club,
cricket field surrounded by a fence + found hit was exceptional to anything seen on the ground
Held No breach of duty, likelihood of harm was low as D took all practical precautions
Paris v Stepney Borough Council [1951]
Employee worked in a garage for council and had 1 good eye, pair of flying metal went into good eye
and completely blinded, not provided goggles held breach of duty, harm was more serious than
other workers with sight in both eyes more vulnerable an employee is, more care should be taken
Harris v Perry [2008]: bouncy castle, parents hosting children’s party, 1 parent was supervising
bouncy council and rest the other guests, turned back to deal with another child, claimant injured on
the castle held not reasonably foreseeable + standard of care reasonable not constant surveillance
SPECIAL standards of care
Certain situations different standards of care from reasonable person
o D has a particular skill of profession
o D has a particular lack of skill
o D is a child
o D is competing in or watching a sporting event
SPECIAL SKILL/PROFESSIONAL Ds
Standard is that of a reasonable person with the same skill or expertise
Bolam v Friern Hospital Management [1957]
Claimant undergoing electro therapy for severe depression, doctor did not give any relaxant
drugs and claimant suffered a serious fracture held doctor was not in breach of duty
BOLAM TEST: not guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art
Bolitho v Hackney Health Authority [1998]
2 year old suffered brain damage and died, doctor failed to clear a child’s blocked airways by
intubation which could have saved his life held not liable for attending to clear the airways, as
could not prove a doctor would gave intubated (as carries many risks)
Montgomery v Lanarkshire Health [2015]: exception to Bolam test, pregnant women, big risk of
shoulder disability, not warned about risk, her son was born with disability, she sued should have
been told of risk, said if told of risk would have opted for a caesarean section held duty for doctor
to discuss risks and alternative treatments
1
BREACH OF DUTY OF CARE
Once established a duty exists, then see whether D is in breach of that duty
C must establish a breach of duty
Breach occurs where D fails to conform to the standard of a reasonable person
Reasonable person described as the ‘main in the street, the man who takes the magazines at
home and in the evening pushes the lawn mower in his shirt sleeve’
OBJECTIVE standard of care
Bolton v Stone [1951]: Miss Stone injured by a cricket ball that hit her, action against cricket club,
cricket field surrounded by a fence + found hit was exceptional to anything seen on the ground
Held No breach of duty, likelihood of harm was low as D took all practical precautions
Paris v Stepney Borough Council [1951]
Employee worked in a garage for council and had 1 good eye, pair of flying metal went into good eye
and completely blinded, not provided goggles held breach of duty, harm was more serious than
other workers with sight in both eyes more vulnerable an employee is, more care should be taken
Harris v Perry [2008]: bouncy castle, parents hosting children’s party, 1 parent was supervising
bouncy council and rest the other guests, turned back to deal with another child, claimant injured on
the castle held not reasonably foreseeable + standard of care reasonable not constant surveillance
SPECIAL standards of care
Certain situations different standards of care from reasonable person
o D has a particular skill of profession
o D has a particular lack of skill
o D is a child
o D is competing in or watching a sporting event
SPECIAL SKILL/PROFESSIONAL Ds
Standard is that of a reasonable person with the same skill or expertise
Bolam v Friern Hospital Management [1957]
Claimant undergoing electro therapy for severe depression, doctor did not give any relaxant
drugs and claimant suffered a serious fracture held doctor was not in breach of duty
BOLAM TEST: not guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art
Bolitho v Hackney Health Authority [1998]
2 year old suffered brain damage and died, doctor failed to clear a child’s blocked airways by
intubation which could have saved his life held not liable for attending to clear the airways, as
could not prove a doctor would gave intubated (as carries many risks)
Montgomery v Lanarkshire Health [2015]: exception to Bolam test, pregnant women, big risk of
shoulder disability, not warned about risk, her son was born with disability, she sued should have
been told of risk, said if told of risk would have opted for a caesarean section held duty for doctor
to discuss risks and alternative treatments
1
