Chapter 8
Breach of duty
8.1 The basics:
- A duty of care is not a duty to ensure that something happens or does not happen.
- What a reasonable person would’ve done in the circumstances.
- The duty of care that drivers owe other drivers requires drivers to live up to an objective
standard of care in their driving, one which makes no allowances or the individual
idiosyncrasies of particular driver.
- How do we determine what those standards are?
- American judge Learned Hand-> ‘in most cases reasonable prudence is in fact common
prudence: but strictly speaking it is never its measure’.
- It’s not possible to come up with any single rule, or standard, by which to determine
whether a given D has breached a duty of care owed to a claimant.
- Learned Hand-> attempted to come up with a formula for determining whether or not a
failure to take a certain precaution meant that a D had breached a duty of care.
- United States v Carrol Towing Co [1947] -> Learned Hand J; ‘1) the probability that she will
break away, 2) the gravity of the resulting injury, if she does 3) the burden of adequate
precautions.
- The cost of taking such a precaution was outweighed by the magnitude of the risk of
something going wrong if someone was not on board at such a time-> decision in Carrol.
- The ‘Hand Formula’ for determining whether someone has breached a duty of care owed to
another may not always apply. Defective car problem.
- Rules:
Objectivity-> the fact that a D did his or her personal best to avoid something
happening will not necessarily mean that he or she did not breach a duty of care
owed to the claimant. Reasonable standard. Objective determination.
Balancing-> rule laid out in the Hand formula. Balancing the cost of taking
precaution (P) against the magnitude of the foreseeable risk that (X) would happen if
precaution (P) were not taken. Exception= where the magnitude of the foreseeable
risk that X would happen if precaution P were not taken was very serious. Balancing
the cost against the magnitude may be inappropriate in certain instances-> the
courts may reuse to excuse A’s failure to take precaution P on cost grounds. Another
exception= that of policy. Could be justified on grounds of the social cost involved in
taking that precaution, even if the risk that X would happen if that precaution were
not taken was relatively serious.
Common practice-> rule= pleading ‘everyone would have done the same as me’
does not work to establish that you have not breached a duty of care. The
exception= where a professional is under a duty to exercise a reasonable degree of
care and skill in looking after a client’s interests. The courts will normally allow the
professional to plead that he did exercise such care and skill in looking after the
client’s interests by showing that there is a significant body of opinion within his
profession that would regard it as proper for him to read his client the way he did->
known as the Bolam test for professional negligence (Bolam v Friern Hospital
Management Committee [1957]). There is an exception to the exception ^; the
Bolitho exception-> Bolitho v City and Hackney Health Authority [1998] where the
courts regard the significant body of opinion as plainly wrong-headed or irrational.
Breach of duty
8.1 The basics:
- A duty of care is not a duty to ensure that something happens or does not happen.
- What a reasonable person would’ve done in the circumstances.
- The duty of care that drivers owe other drivers requires drivers to live up to an objective
standard of care in their driving, one which makes no allowances or the individual
idiosyncrasies of particular driver.
- How do we determine what those standards are?
- American judge Learned Hand-> ‘in most cases reasonable prudence is in fact common
prudence: but strictly speaking it is never its measure’.
- It’s not possible to come up with any single rule, or standard, by which to determine
whether a given D has breached a duty of care owed to a claimant.
- Learned Hand-> attempted to come up with a formula for determining whether or not a
failure to take a certain precaution meant that a D had breached a duty of care.
- United States v Carrol Towing Co [1947] -> Learned Hand J; ‘1) the probability that she will
break away, 2) the gravity of the resulting injury, if she does 3) the burden of adequate
precautions.
- The cost of taking such a precaution was outweighed by the magnitude of the risk of
something going wrong if someone was not on board at such a time-> decision in Carrol.
- The ‘Hand Formula’ for determining whether someone has breached a duty of care owed to
another may not always apply. Defective car problem.
- Rules:
Objectivity-> the fact that a D did his or her personal best to avoid something
happening will not necessarily mean that he or she did not breach a duty of care
owed to the claimant. Reasonable standard. Objective determination.
Balancing-> rule laid out in the Hand formula. Balancing the cost of taking
precaution (P) against the magnitude of the foreseeable risk that (X) would happen if
precaution (P) were not taken. Exception= where the magnitude of the foreseeable
risk that X would happen if precaution P were not taken was very serious. Balancing
the cost against the magnitude may be inappropriate in certain instances-> the
courts may reuse to excuse A’s failure to take precaution P on cost grounds. Another
exception= that of policy. Could be justified on grounds of the social cost involved in
taking that precaution, even if the risk that X would happen if that precaution were
not taken was relatively serious.
Common practice-> rule= pleading ‘everyone would have done the same as me’
does not work to establish that you have not breached a duty of care. The
exception= where a professional is under a duty to exercise a reasonable degree of
care and skill in looking after a client’s interests. The courts will normally allow the
professional to plead that he did exercise such care and skill in looking after the
client’s interests by showing that there is a significant body of opinion within his
profession that would regard it as proper for him to read his client the way he did->
known as the Bolam test for professional negligence (Bolam v Friern Hospital
Management Committee [1957]). There is an exception to the exception ^; the
Bolitho exception-> Bolitho v City and Hackney Health Authority [1998] where the
courts regard the significant body of opinion as plainly wrong-headed or irrational.
