Gn: Breach

Blyth v Birmingham Waterworks

“A failure to do something which, guided by the circumstances that regulate behaviour, a reasonable person would have done” or “what a reasonable person would not do”

Independent of idiosyncrasies, what would a reasonable man have had in contemplation in the circumstances of the case.

Likelihood of Harm

Seriousness of Harm

Practicality / Cost of Precaution

Utility of Defendant’s Conduct

State of Knowledge / Foresight

Higher likelihood = High Standard of Care = Greater the precautions

High fences were sufficient, no need for further precaution.

The likelihood of harm was negligible, with a history of about 6 balls hit out over 30 years.

It was estimated about 8-9 balls were struck out of the field every season and caused damage each time.

Held: further precaution was necessary. Defendant had breached their duty.

The more serious, the more precaution, the higher the standard

Claimant had only one good eye. Defendant knew this fact. If Claimant had injured the one good eye, the seriousness of it would be greater i.e. total blindless as to partial.

Defendant had breached his duty by failing to provide safety goggles.

Woman has been employed by the defendant about 5 times. At every instance, she would contract dermatitis and go off work to later return and ask for work again.

Defendant had no such duty to not employ the claimant. Both parties were fully aware of the risks associated with the job.

The case would be different if D had purposely hid the risks from C.

Woman has been employed by the defendant about 5 times. At every instance, she would contract dermatitis and go off work to later return and ask for work again. She was assigned to a job less exposed to the danger after her first return.

Defendant had no such duty to not employ the claimant. Both parties were fully aware of the risks associated with the job.

The case would be different if D had purposely hid the risks from C.

Woman has been employed by the defendant about 5 times. At every instance, she would contract dermatitis and go off work to later return and ask for work again. She was assigned to a job less exposed to the danger after her first return and on every subsequent return.

Defendant had no such duty to not employ the claimant and if he did, had already done what’s reasonable. Both parties were fully aware of the risks associated with the job.

The case would be different if D had purposely hid the risks from C.

The easier the precaution is to adopt and the less disadvantageous it would be, breach is likely.

The easier the precaution is to adopt and the less disadvantageous it would be, breach is likely.

Defendant’s factory was reopened after a flood/storm. Slippery substance remained on the floor. Sawdust was spread over to absorb it and to minimize slipping. Operates continued.

Claimant slipped, fell and injured.

Argued: entire factory should have been shut down. Court held, impractical to do so. It was not too serious of a risk to resort to that measure.

The new “sound upper limit” regulation was only generally known among factories by 1988. But the defendant had such knowledge about these new regulations by 1983, 5 years prior.

He had breached his duty by failing to adopt these precautions at the time that he knew. They had the knowledge to allow practical changes to be made.

In a state of emergency, the defendant is entitled to a lower standard in deciding between two scenarios.

Heavy jack needed to lift a car off of a trapped person. Heavyjacked required a special vehicle, but it was operating elsewhere. An alternative vehicle was used instead, the defendant braked and the jack moved forward injuring one of the rescuers.

Held: there was no breach in using the alternative vehicle / failing to provide the proper vehicle. The life of another was more important than absolute safety precautions.

Naturally, if there was special knowledge, the application of that knowledge is expected.

The state of knowledge at the time meant that micro-cracks such as in this case was completely unforeseeable nor discoverable.

Defendants had not breached their duties.

Had special knowledge as to new “sound upper limit” regulation before it was widely known, but had still failed to take precautions against it.

Key cases are:

Bolam v Friern Hospital Management Committee

Bolitho v City and Hackney HA

Wilsher v Essex Health Authority

Sidaway v Board of Governors of Benthlam Royal Hospital

Situations involving use of special skill or knowledge, the test is:

The standard of the ordinary man exercising and professing to have that special skill.

Doctor breached his duty by failing to administer muscle relaxants prior to Electro-convulsive Therapy. Patient suffered fractures; the known risk of ECT.

Held: no breach if he had acted in line with a responsible body of opinion of medically skilled people. This is so even if supported by the minority.

Diagnosed the wrong illness and chose not to wait for results. Had he waited, tuberculosis would have been discovered.

Held: no breach. They had done was considered reasonable practice.

Amateurity does not diminish the expected duty of care. Amateurs are compared to the standard of a professionally skilled practitioner.

Lord Browne-Wilkinson stated:

Court must be satisfied that the bodies of opinion brought to demonstrate that opinion has a logical basis

Courts are no longer bound to accept and adopt the views of medical opinion just because there is a majority.

The courts shall not inquire as to the orthodoxy of the medical practice. Thus, the defendant was entitled in using herbal medicine, and there was no breach.

A doctor is expected to follow his duty of care in regards to medical practice, but what about prior? The disclosure of risks as it’s authorities supporting it.

A risk of <1% for spinal injury was not told to C. The risk materialized.

The doctor was held not liable as the risk would not have disclose by the other doctors either.

Failure to disclose a risk of 1-2% was held to be a breach of the doctor’s duty.

Claimant had proven that had she been informed, she would have sought a second opinion.

i.e. she suffered the loss of choice / freedom to choose.

Claimant suffered high risks of problematic delivery. As a result, the son was born with birth defects.

The doctor was held liable as he should have warned about the risks and proposed alternatives (especially since there were real available alternatives).

The test was: was the patient likely to have placed significance upon the risks had they been informed? (Would they have changed their minds or reconsidered?)

Mulholland v Medway NHS Trust

Mulholland v Medway NHS Trust Doctor was held not negligent for following the advise of his senior doctors. It was considered reasonable practice within such a pressurized environment.

Mental conditions

Children’s age

Sports

If the defendant had known of a illness, a reasonable person in his positio was considered

While driving, the driver had felt strange. Later he suffered a stroke, crashed and caused damage.

Held: Still liable. If he had felt strange and lightheaded, a reasonable person in that circumstance would have stopped driving and rested.

The defendant is excused if his mental condition unpredictably manifested without prior warning or knowledge.

Mullin v Richards:

A 15 year old was compared to another reasonable boy of the same age.

To prove negligence in sports, more than a mere lapse of judgment is needed to be proven: Caldwell v Maguire

Negligence in handling his horse during a race was excusable as a mere mistake and there was no liability.

Unless he shows a real disregard for the safety of others.