Breach of DutyElements of Negligence Duty of CareoVery limited amount of leading cases – problematic… oIt is a concept on it is own determining whether or not liability existoIt’s not about disputeoGenerally, don’t need to consider the factsBreach of duty oMust establish what the duty is first (e.g. duty of care)oThere are a lot of factual statement in the breach stage to convince the articulation of the law.oLook closely to the actions of the defendant, see if they were at fault or notCausation (damage caused by the breach)What is a ‘breach’ of duty?What is the connection between a ‘breach of duty’ and the ‘standard of care’? Take care to differentiate ‘standard of care’ and ‘duty of care’oStandard of care – breach concept, it is very different to duty of careBreach cases‘Decisions on breach are not citable as authorities, they are merely illustrations of the application of the indubitable rule that if one is under a duty at common law such care must be taken as is called for in all the circumstances’oIt would be more accurate to say most decisions but not all…oBreach cases are not very precedent compared to duty (e.g. Caparo case)But in duty, most of the time, you barely talk about the facts of the case. Cases are useful of faced with a situation (e.g. client or exam question) where the facts are sufficiently similar.Under litigation (process of taking legal action), the judges are there the umpire the case, not participating in it. It’s up to the lawyer to bring the case and present all the facts to the judge.oThe court should end up, if the lawyer does their job properly, been presented with all the precedent to help them make a decision in breach questions.The nature of breachA matter of judgement rather than the strict application of legal rulesoIt’s up to the jury to decide what is and isn’t appropriate ‘It cannot be proved that a person was negligent; one can merely argue that a personwas negligent and hope to persuade the judge’.
Matter of judgement?How ought defendant to have behaved, i.e. what standard of care should have been exercised – setting this approach would be the question of lawDid defendant’s conduct (based on evidence presented) fall below this standard? This approach would be question of factReasonable man/person – terminology the court use‘The man on the Clapham omnibus’oHall v Brooklands Auto-Racing Club (1933) per Greer LJ at 224A ‘traveller on the London ground’oMcFarlane v Tayside Health Board (1999) per Lord Steyn at 82Objective elemento‘the man on the Clapham omnibus’, ‘the traveller on the London underground’Subjective element oThe judge - what persona characteristics does the judge have in mind for the Reasonable Man – gender, race, religion, social class? Is the reasonable man test any more than a vehicle for judges (what hare the typical judicial characteristics?) to apply their concept of reasonableness?