SESSION 10 - TORT OF NEGLIGENCE.pdf

The issue arose as to whether the police owed a duty

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The issue arose as to whether the police owed a duty of care to the deceased. Held . The police did not owe a duty of care to the deceased. To make them liable would have required the police to embark on “defensive policing” which would not be in the interest of public policy. 24
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Once a duty of care has been established, the plaintiff must show that the defendant had breached (broken) this duty of care. According to the case of Blyth v. Birmingham Waterworks Co., this means: “the omission to do something which a reasonable man would do; or doing something which a reasonable man would not do” . 25
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In determining whether the duty has been breached, the court would enquire whether: The defendant had met the expected “standard of care” . The standard of care is that based on the standard of an ordinary, reasonable and prudent person as mentioned in Blyth’s case . If the standard of care has not been met based on the above yardstick, then there would be a breach of the duty imposed by law. 26
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To assist the courts in determining this standard of care, several factors have to be considered: The level of skill Likelihood of injury Seriousness of injury Costs of avoiding the risks 27
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The level of skill expected and required is that of a reasonable person in the defendant’s shoes. So in the case of Roe v. Minister of Health, the court viewed the test as whether a reasonable man would have foreseen the breach of that duty had he been subjected to the same circumstances as the defendant. When dealing with professional persons, e.g. a doctor, this would turn on the question of whether any other professional (doctor) with a similar level of skill and knowledge would have conducted the same treatment. 28
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Facts . In 1947, a hospital patient was given a spinal anesthetic to prepare him for a minor operation. This was contained in a glass ampoule which had been kept before use in a chemical solution. Unknown to doctors, the ampoule had “hairline” cracks in it which when mixed with the chemical solution caused a poisonous concoction. The plaintiff suffered permanent spinal disability and sued the Ministry of Health. Held : The court held that the defendant was not liable. Such “hairline” cracks were not known to the medical profession to occur until 1951. A reasonable and prudent doctor could not have foreseen such a possibility in 1947. 29
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The higher the likelihood (or sometimes called “probability”) of injury occurring, the higher the standard of care expected. In the case of Bolton v. Stone (the cricket ball accident case), the court held that on the facts the likelihood of injury was relatively low, so the duty of care was not breached. 30
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Facts . The plaintiff was struck by a cricket ball while standing on the street outside her house. Her house was situated near a cricket ground.
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