Liability in negligence - breach of duty
Liability in Negligence
Duty of care + Breach + Damage = Negligence
Breach of Duty
- The duty of care may be breached if it does not meet the requirements of the objective
standard of care.
- This is tested using the ‘Reasonable Person’ test.
- There are a number of variations for this test, these are often included where the person has
a special characteristic material to the course of events.
The Reasonable Person Test
Lord Bowen used the phrase ‘the man on the Clapham omnibus.’ - This was used to show what the
test was concerning the actions of the average person. Just someone random on the bus.
Higher level of responsibility – doctors, police, firefighters.
Lower level of responsibility – students, children, disabilities.
Reasonable person – professionals
Bolam v Frien Barnet Hospital Management Committee (1957)
- The claimant was suffering from a mental illness, the treatment for which was ECT.
- He signed a consent form but was not told the risk of broken bones.
- He was not given relaxant drugs which also increased the risk of this happening.
- They broke their pelvis during the treatment.
- Two opinions on the use of the drugs were gathered before the procedure, one doctor said
it was not so important.
- Because the hospital listened to one of the specialists, they had not breached their duty of
care.
The principle from this case for deciding if professionals have breached their duty of care is to ask
the following two questions:
1. Does the defendant’s conduct fall below the standard of the ordinary, competent, member
of that profession.
2. Is there a substantial body of opinion within the profession that would support the course of
action taken by the defendant.
Reasonable Person – Learner Driver
Nettleship v Weston (1971)
- Mrs Weston was a Learner Driver and had booked lessons with Mr Nettleship.
- After failing to straighten the wheel after a corner, Mrs Weston hit a lamppost, which fell
onto the car.
- Mrs Weston was held to the standards of an experienced driver.
Liability in Negligence
Duty of care + Breach + Damage = Negligence
Breach of Duty
- The duty of care may be breached if it does not meet the requirements of the objective
standard of care.
- This is tested using the ‘Reasonable Person’ test.
- There are a number of variations for this test, these are often included where the person has
a special characteristic material to the course of events.
The Reasonable Person Test
Lord Bowen used the phrase ‘the man on the Clapham omnibus.’ - This was used to show what the
test was concerning the actions of the average person. Just someone random on the bus.
Higher level of responsibility – doctors, police, firefighters.
Lower level of responsibility – students, children, disabilities.
Reasonable person – professionals
Bolam v Frien Barnet Hospital Management Committee (1957)
- The claimant was suffering from a mental illness, the treatment for which was ECT.
- He signed a consent form but was not told the risk of broken bones.
- He was not given relaxant drugs which also increased the risk of this happening.
- They broke their pelvis during the treatment.
- Two opinions on the use of the drugs were gathered before the procedure, one doctor said
it was not so important.
- Because the hospital listened to one of the specialists, they had not breached their duty of
care.
The principle from this case for deciding if professionals have breached their duty of care is to ask
the following two questions:
1. Does the defendant’s conduct fall below the standard of the ordinary, competent, member
of that profession.
2. Is there a substantial body of opinion within the profession that would support the course of
action taken by the defendant.
Reasonable Person – Learner Driver
Nettleship v Weston (1971)
- Mrs Weston was a Learner Driver and had booked lessons with Mr Nettleship.
- After failing to straighten the wheel after a corner, Mrs Weston hit a lamppost, which fell
onto the car.
- Mrs Weston was held to the standards of an experienced driver.
