Breach of Duty
Breach of duty refers to the failure to meet the legal obligation or standard of care owed to another party. In legal terms, it involves a person or entity not fulfilling their duty to act reasonably or responsibly, resulting in harm or damage to another party. This concept is often central to negligence claims in legal proceedings.
8 Key excerpts on "Breach of Duty"
eBook - ePub- Timon Hughes-Davies, Nathan Tamblyn(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...Chapter 3 Negligence: Breach 3.1 Introduction Breach is the second element of the tort of negligence. The claimant has to show that the defendant not only owed him or her a duty of care, but also that the defendant breached the duty. Figure 3.1 The elements of negligence: breach The law adopts an objective standard: if the defendant did something that a reasonable person would not have done, or did not do something which a reasonable person would have done in the circumstances, then there will usually be a breach of the duty. Why the defendant breached the duty is less important. It does not matter that the defendant was tired, or distracted, or inexperienced. 1 The well-meaning, but incompetent, defendant is just as liable as the lazy or reckless defendant. 1 Nettleship v Weston [1971] 2 QB 691. The law does, however, take the circumstances into account. Obviously, it would be unreasonable for a driver to go through a red light in ordinary circumstances. But if the person is driving an ambulance, then the same act may be reasonable. As you read Understand the standard of care and what is meant by breach. Identify the duty of care as applied to children. Understand the care to be taken when vulnerable people and children may be involved. Understand the test applied in professional negligence. ____________ 3.2 Reasonable care The duty of care is a duty to take reasonable care not to cause damage to the claimant...
eBook - ePubMedical Law Handbook
The Epidemiologically Based Needs Assessment Reviews, Low Back Pain - Second Series
- Raj Mohindra, Alison Davies(Authors)
- 2017(Publication Date)
- CRC Press(Publisher)
...10 Negligence: breach of the duty of care 10.1 GENERAL PRINCIPLES 10.1.1 In the previous sections we have seen that the existence of a doctor– patient relationship (medical professional–patient relationship) is sufficient to create a duty of care. We have considered the situations when a duty of care might arise. As we have seen, not all relationships amount to a doctor–patient relationship. 10.1.2 Knowing that you owe a duty of care to someone does not tell you what you have to do to discharge that duty. A duty of care contains certain obligations. This is the idea of the content of a duty of care, which tells you what should be done or not be done to discharge that duty of care. 10.1.3 To discover what should be done we need a yardstick by which to measure the content of the duty of care, some standard by which we can judge what should have been done. This yardstick is called the standard of care. The more stringent the standard, the harder it is to meet. 10.1.4 In negligence, a claim can only really arise when the duty is not satisfactorily discharged. 1 This is the idea of the breach of the duty of care. To determine whether a breach of the duty of care has occurred, the Court determines what actually happened, i.e. the facts of the case, by taking evidence. It then compares what actually happened with the standard of care which is required by the law. If what actually happened falls below what should have happened, then the Court can conclude that a breach of the duty of care has occurred. Note how the standard of care is a question of law. 10.1.5 The advent of an adverse outcome alone does not establish the existence of breach of the duty of care. Risks materialise in medical practice even when the utmost skill and attention is deployed...
eBook - ePub- Graham Stephenson, Graham Stephenson(Authors)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
...CHAPTER 3 Breach of Duty INTRODUCTION The second element which a claimant must establish in a negligence action is that the defendant was in Breach of Duty. It is often the most difficult element to satisfy and in the majority of cases, made up primarily of road traffic accidents and work related injuries, it is the singularly most contentious issue. In these types of cases, the duty issue is rarely a problem, as the case will normally fall within one of the established categories of duty situation. Most of the trial judge's deliberations will be taken up with this breach issue. Even if the claimant can show that the situation is one in which a notional duty is owed to her and in addition that the defendant's conduct caused her harm, she will fail unless she can establish on the balance of probabilities that the defendant's conduct fell below the standard set by the law. There are two issues involved here: (1) what is the standard of care required of the defendant in law; (2) has this defendant fallen below the standard demanded of him? This latter question is often described as being one of fact, but this may disguise the fact that a judge in deciding whether the defendant's conduct had the character of negligence, may be making inferences from what are called the primary facts. For example, in a road accident the judge is required to find the facts surrounding the incident from the witnesses. What were the weather conditions, was the road well lit if the accident took place at night, what was the speed of the defendant's vehicle? These are the primary facts, but, in deciding from these as to whether the defendant's driving amounted to fault, the judge will often be making a value judgment. In a sense, such a decision is properly regarded as one of mixed fact and law. In nearly all civil trials these days, the judge sits without a jury and is therefore the arbiter of both fact and law...
eBook - ePub- James Douglas(Author)
- 2010(Publication Date)
- Wiley-Blackwell(Publisher)
...the norm in the surveying profession. 18.2 Negligence defined Negligence is a tort or civil wrong of particular importance to surveyors. It is the failure to exercise the degree of care that the circumstances demand and is separate and distinct from the law of contract (see Section 1.10 ‘Contracts and fees’). What amounts to negligence will depend upon the facts of each particular case and can be defined as a breach of legal duty to take care which results in damage to the plaintiff. The duty of care arises independently of any contractual relationship. In order to decide whether a defendant has been negligent the plaintiff must prove that: (1) The defendant owed to the plaintiff a ‘duty of care’. This is an area of particular importance in building disputes. The courts now have many cases to guide them in deciding whether there is a duty of care (see Section 18.11). (2) The defendant was in breach of that duty. This is of central importance in all negligence litigation. (3) The plaintiff has suffered loss or damage as a result of a Breach of Duty by the defendant. The plaintiff will usually be entitled to recover damages, the object being to provide recompense by money for the wrong that has been done. 18.3 Duty of care The duty to take care has been defined by Lord Atkin in the celebrated case of the snail in the ginger beer bottle, Donoghue v. Stevenson (1932): ‘You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour. Who in law is my neighbour? The answer seems to be the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to acts or omissions which are called into question.’ (1932) AC 605–623. What is reasonable care will vary with the circumstances. Clearly the seriousness of the potential damage that a mistake may cause must be taken into account...
...employers/employees; fellow motorists; doctors/patients, manufacturers/consumers, etc. 6 However, courts have also considered many controversial situations. 2.2 Breach of the duty of care 2.2.1 The Standard of Care and Reasonable Man Test 1 A breach occurs whenever a defendant falls below the standard of care appropriate to the particular duty owed. 2 The standard is objectively measured by the ‘reasonable man’ test: ‘the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.’ Per Alderson B in Blyth v Birmingham Waterworks (1865). 3 The reasonable man has been described as ‘the “man on the street” or “the man on the Clapham omnibus” …’ 4 Or, as MacMillan LJ put it in Glasgow Corporation v Muir (1943), the test is ‘independent of the idiosyncrasies of the particular person whose conduct is in question … The reasonable man is presumed to be free from both over-apprehension and over-confidence’. 5 So Breach of Duty then is merely the same as fault. 6 Factors of policy and expediency are taken into account, e.g.: who can best bear the loss; whether or not the defendant is insured; how the decision might affect future behaviour; the justice of the individual case; how the decision affects society as a...
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...3 Negligence: Breach of Duty AIMS AND OBJECTIVES After reading this chapter you should be able to: ■ Identify the relevant measure of care applicable to non-professionals and professionals ■ Explain and apply the general standard of care ■ Explain and apply the standard of care applicable to professionals, particularly doctors ■ Identify the factors used in determining whether a defendant has fallen below the standard of care appropriate to the duty owed ■ Critically analyse the concepts of standard of care and Breach of Duty of care ■ Identify the appropriate standard of care in factual situations ■ Apply the factors for determining breach to factual situations in order to establish if a breach has occurred 3.1 The standard of care and the ‘reasonable man’ test 3.1.1 The standard of care We have already seen how negligence occurs where a person owing a duty of care to another person breaches that duty and causes damage which is not too remote a consequence of the Breach of Duty. Breach of Duty, the second element of negligence, actually refers to the standard of care that is appropriate to the duty owed. A Breach of Duty simply occurs when the party owing the particular duty falls below the standard of behaviour that is required by the particular duty in question. The judge in the case will determine the standard of care and whether or not the defendant’s behaviour has fallen below that standard according to established tests. While the standard of care in any situation is a question of law, whether or not the defendant has fallen below the standard is a question of fact that will be determined by reference to all of the circumstances of the case. The standard of care required is generally measured according to an objective method of testing...
...3 Negligence – Breach of Duty, causation and damage Breach of the duty of care The so-called ‘reasonable man’ Once a duty of care has been established, the next hurdle faced by the victim is to show that the defendant has acted in a way which is in breach of that duty. In order to do this, it is essential that there be some mechanism to decide the standard of behaviour which can be expected from the defendant. The conduct of the claimant may also be relevant; this will be considered in the later chapter on defences. The concept of the ‘reasonable man’ may offend some in the modern world where political correctness would require the use of the term the ‘reasonable person’. Over the years, however, the description has stuck; he is also known as ‘the man on the Clapham omnibus’ and ‘the ordinary man in the street’. To some people, the phrase is almost derogatory. The writer A. P. Herbert, in Uncommon Law, described the reasonable man as an ‘excellent but odious character’ who is ‘devoid of any human weakness, with not one single saving vice’...
eBook - ePub- Wendy Laws(Author)
- 2021(Publication Date)
- Routledge(Publisher)
...However, it is important to remember that establishing a duty of care is only the first element necessary for a successful claim. The claimant must also show that the duty of care was breached, and that such breach caused the damage they suffered. Chapter 8 revision points Limited duty situation – economic loss Distinguish pure economic loss and consequential economic loss Damage to a defective product acquired by the claimant Pure economic loss No duty of care owed Not recoverable Financial loss caused by damage to property which does not belong to the claimant Pure economic loss No duty of care owed Not recoverable Financial loss which is not caused by damage to property (statements/services) Pure economic loss No duty of care owed unless special relationship involving assumption of responsibility and reasonable reliance After duty of care – complete analysis by considering: Breach of Duty Causation of damage Defences 9 Negligence: limited duty situations – psychiatric harm DOI: 10.4324/9781003133698-15 9.1 Chapter overview Before reading this chapter you may find it helpful to refer to the chapter overview of Chapter 8, which introduced the concept of limited duty situations. This chapter focuses on duty of care in cases of psychiatric harm. That is, cases in which the defendant’s negligence does not cause any direct physical impact on the claimant but exposes the claimant to a shock which causes them to suffer a psychiatric illness or a shock-induced physical illness or injury. It explains the key distinction between primary and secondary victims: Primary victims are those in the area of danger created by the defendant’s negligence. Secondary victims are those not in the area of danger. It explains the duty of care owed to primary victims...
