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Ciara Hackett

on 16 October 2014

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Transcript of FAULT

What is the standard of care?
Who is this reasonable man?
What is meant by "in the circumstances"
1. Has the claimant suffered loss? (Preliminary Issue)
a. If no…no case
b. If yes…move to Q.2.
2. Did D owe C a duty of care? (Preliminary Issue)
a. If no…then no case
b. If yes…move to Q. 3.
3. Did D Breach that duty
a. If no…no case
b. If yes…move to Q.4.
4. Did D’s breach cause C’s loss
a. If no…no case
b. If yes…move to Q.5.
5. Are there any defences available

Vaughn v Menlove [1837]
"proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances."

The standard of care is that of a reasonable man
in the circumstances
Objective v Subjective?
1. Who is the reasonable man
2. What are the circumstances
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Blyth v Birmingham Waterworks Co. Alderson, B.
Who is this man?
Nettleship v Weston [1971] 2 QB 691.
The Reasonable Man
Physical Capacity
Mental Incapacity
A. The Child Defendant
B. Special Skill
Mullin v Richards [1997] EWCA Civ 2662
Earn More Marks:
Mullin to Blake v Galloway [2004] EWCA Civ 814
Wilsher v Essex Health Authority [1987] QB 730.
“In a case such as the present, the standard is not just that of the averagely competent and well informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated.”
Difference in Medical Opinion
Bolam v Friern Hospital [1957] 1 WLR 583.

Bolitho v City and Hackney Health Authority [1998] AC 232.
ii. Physical Capacity
Mansfield v Weetabix Ltd [1997] EWCA Civ 1352.
S.A. Ambulance v Walheim (1948) 77 CLR7
iii. Mental Incapacity
In the circumstances?

a. Risk of the Accident Occurring (R)
b. Seriousness of Injury if accident
does happen (S)
c. Cost of precautions to prevent
accident occurring (C)
d. Benefit of D’s actions (V)

Bolton v Stone
Haley v London Electricity Board [1965] AC778
Hanser v Chicago, Rhode Island & Pacific Ry (1928) 205 Iowa 946

Paris v Stepney Borough Council [1951] AC 367

Watt v Hertfordshire CC [1954] 1 WLR 835

“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to
meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might-

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.”

Compensation Act 2006
Economic Formula?
R + S < C + V = D not guilty
R + S > C + V = D guilty

Res Ipsa Loquitor?
(1) Recognisable loss or damage suffered by C?
(2) If “yes” to (1), was D under any duty of care?
(3) If “yes” to (2), was D in breach of that duty?
(4) If “yes” to (2) & (3) did D’s breach of duty cause C’s injury/loss?
(5) If “yes” to the above, consider any applicable defences that might come to the aid of D.

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