lecture 9c breach of duty of care (1)

7/28/2019 Lecture 9C Breach of Duty of Care (1)

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1. The standard of a reasonable manThe standard of a reasonable man is not that of an average man. Therule has been developed as follows:

(a) The test is one of knowledge and general practice existingat the time, not hindsight or subsequent change of practice. See:Roe vs Minister of Health 1954

(b)A person who professes to have a particular skill,, forforexamexample in a profession, is required to use the skill which hepurports to have. But an error of judgment is not automatically acase of negligence: Whitehouse v Jordan 1981

(c) In deciding what is reasonable care the balance must be struckbalance must be struckbetween advantage and risk.between advantage and risk. The driver of a fire engine mayexceed the normal prudent speed on his way to a fire but not on

the way back.


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1. The standard of a reasonable man(d) If A owes a duty of care to B and A knows that B is unusually

vulnerable, a higher standard of care is expected. Forexample, B might be a child inexperienced employee given riskywork to do or a person with a thin skull. Paris v Stepney BouroughCouncil 1951.

oe v n s er o eaoe v n s er o ea

The fact: A doctor gave a patient an injection, taking all the precautionsrequired at that time. The drug was contaminated and the patientbecame paralyzed.At the time of the trial seven years later medicalpractice had been improved to avoid the risk of undetected

contaminated (through an invisible crack in a glass tube).

Decision: The proper test was normal practice based on the state ofmedical knowledge at the time. The doctor was not at fault in failingto anticipate later developments.


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The facts:

The claimant went to the hospital to have a baby and hadbeen identified as likely to have a difficult birth. The

defendant surgeon first tried delivery by forceps but

Whitehouse v Jordan 1981

this was unsuccessful and he then carried out a

Caesarean delivery. The baby suffered brain damage

and the claimant argued that too much force had been

used in trying the forceps delivery, and this caused

asphyxia and brain damage.


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Decision: The House of Lords, in dismissing the

claimants appeal, said that the test whether asurgeon has been negligent is whether he has met

the standard of the ordinar skilled sur eon. The

Whitehouse v Jordan 1981

doctor's standard of care did not fall below that of a

reasonable doctor in the circumstances and so the

baby was awarded no compensation.

http://books.google.com.vn/books?id=aZVS9HsHiJ4C&pg=PT79&lpg=PT79&dq=white+house+and+jordan+1981+standardhttp://books.google.com.vn/books?id=aZVS9HsHiJ4C&pg=PT79&lpg=PT79&dq=white+house+and+jordan+1981+standard

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Paris v Stepney Borough Council 1951

The facts:

P was employed by K on vehicle maintenance. P had

already lost the sight of one eye. He was hammeringmetal. It was not the normal practice to issueprotective goggles to men employed on this work sincethe risk of eye injury was small. A chip of metal flew

' .

Decision:

Although industrial practice did not require the use of

goggles by workers with normal sight, a higherstandard of care owed to P because an injury to hisremaining good eye would blind him. K had failed tomaintain a proper standard of care in relation to P.


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2. Res ipsa loquitur It is to help the plaintiff show the proof

that the defendant owed him the duty ofcare and the defendant failed in that duty-lack of reasonable care

n some c rcums ance, e neg gence canbe drawn from the fact- the facts speakfor themselves.


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2. Res ipsa loquiturIt rests on the claimant to show both that the

defendant owed him a duty of reasonable

care and that the defendant failed in thatduty. In some circumstances theIn some circumstances theclaimant ma ar ue that the factsclaimant ma ar ue that the facts

speak for themselves (resspeak for themselves (res ipsaipsaloquiturloquitur):): that want of care is the onlypossible explanation for what happened and

negligence on the part of the defendantmust be presumed.


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2. Res ipsa loquiturTo rely on this principle the claimant must

first show:

1. The thing which caused the injury was under

the management and control of thedefendant

2. The accident was not occurred if thedefendant used proper care.


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Scott v London & St Katharine Docks Co 1865

The facts:

S was passing in front of the defendantswarehouse. Six bags of sugar fell on him.

The decision:

In the absence of explanation it must be

presumed that the fall of the bags was dueto want of care on the part of defendant.


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Res ipsa loquitur

Similarly, in Mahon v Osborne 1939 the

principle of res ipsa loquitor was argued whena surgeon let a swab (mop with cotton woolfor a l in medicaments inside atient

after an operaton.

lecture 9c breach of duty of care (1)

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