每日一练F4（ENG） 答案回复可见
<p>3 In relation to the tort of negligence explain the standard of care owed by one person to another.<br/>(10 marks)</p><p>3 Once a claimant has established that the defendant owes them a duty of care, they must then establish that the defendant has<br/>actually breached that duty. The test for establishing breach of duty is an objective one and was set out in Blyth v Birmingham<br/>Waterworks Co (1856). Thus a breach of duty occurs if the defendant:<br/>... fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct<br/>of human affairs, would do; or does something which a prudent and reasonable man would not do.<br/>The fact that the defendant has acted less skilfully than the reasonable man would expect will usually result in breach being<br/>established. This is the case even where the defendant is inexperienced in his particular trade or activity. For example, a learner<br/>driver must drive in the manner of a driver of skill, experience and care (Nettleship v Weston (1971)). It is, however, clear from<br/>the case law that, depending on the age of the child, the standard of care expected from a child may be lower than that of an<br/>adult. Children should be judged on whether they have the ‘foresight and prudence of a normal child of that age’ (see Mullin v</p><p>Richards (1998)). The degree or standard of care to be exercised by such a person will vary, as there are factors, such as the age<br/>of the claimant, which can increase the standard of care to be exercised by the defendant. The test is, therefore, flexible but the<br/>following factors will be taken into consideration in determining the issue:<br/>– The probability of injury<br/>The degree of care must be balanced against the degree of risk involved if the defendant fails in his duty. It follows, therefore,<br/>that the greater the risk of injury or the more likely it is to occur, the more the defendant will have to do to fulfil his duty. Thus<br/>in Glasgow Corporation v Taylor (1992) the provision of a warning notice was not considered sufficient to absolve the<br/>corporation from liability of injury sustained by young children eating poisonous berries in its park (See also In Bolton v Stone<br/>(1951) where the likelihood of the injury occurring was small, as was the risk involved).<br/>– The seriousness of the risk<br/>The degree of care to be exercised by the defendant may be increased if the claimant is very young, old or less able bodied<br/>in some way. The rule is that ‘you must take your victim as you find him’ (this is known as the egg-shell skull rule).<br/>In Haley v London Electricity Board (1965) the defendants, in order to carry out repairs, had made a hole in the pavement.<br/>The precautions taken by the Electricity Board were sufficient to safeguard a sighted person, but Haley, who was blind, fell<br/>into the hole, striking his head on the pavement, and became deaf as a consequence. It was held that the Electricity Board<br/>was in breach of its duty of care to pedestrians. It had failed to ensure that the excavation was safe for all pedestrians, not<br/>just sighted persons. It was clearly not reasonably safe for blind persons, yet it was foreseeable that they may use this<br/>pavement.<br/>There are other cases in this field which should be referred to, for example, Gough v Thorne (1966), concerning young<br/>children; Daly v Liverpool Corp (1939), concerning old people; and Paris v Stepney BC (1951), concerning disability (see<br/>below).<br/>– Cost and practicability<br/>Any foreseeable risk has to be balanced against the measures necessary to eliminate it. If the cost of these measures far<br/>outweighs the risk, the defendant will probably not be in breach of duty for failing to carry out those measures. Thus in<br/>Latimer v AEC Ltd (1952) a factory belonging to AEC became flooded after an abnormally heavy rainstorm. The rain mixed<br/>with oily deposits on the floor, making the floor very slippery. Sawdust was spread on the floor, but it was insufficient to cover<br/>the whole area. Latimer, an employee, slipped on a part of the floor to which sawdust had not been applied. It was held that<br/>AEC Ltd was not in breach of its duty to the plaintiff. It had taken all reasonable precautions and had eliminated the risk as<br/>far as it practicably could without going so far as to close the factory. There was no evidence to suggest that the reasonably<br/>prudent employer would have closed down the factory and, as far as the court was concerned, the cost of doing that far<br/>outweighed the risk to the employees.<br/>– Social benefit<br/>The degree of risk has to be balanced against the social utility and importance of the defendant’s activity. For example in Watt<br/>v Hertfordshire CC (1954), injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation, was not<br/>accepted as being the result of a breach of duty of care as in the circumstances time was not available to take the measures<br/>that would have removed the risk.<br/>– Common practice<br/>Actions in line with common practice or custom, may be sufficient to meet the expected standard of care, except, of course,<br/>where the common practice is in itself negligent. Thus in Paris v Stepney BC (1951) not wearing safety glasses in a foundry<br/>was common practice but it was in itself essentially negligent and the defendant could rely on it as a defence.<br/>– Skilled persons<br/>Individuals who hold themselves out as having particular skills are not judged against the standard of the reasonable person,<br/>but the reasonable person possessing the same professional skill as they purport to have. In Roe v Minister of Health (1954),<br/>a patient was paralysed after being given a spinal injection. This occurred because the fluid being injected had become<br/>contaminated with the storage liquid, which had seeped through minute cracks in the phials. It was held that there was no<br/>breach of duty, since the doctor who administered the injection had no way of detecting the contamination at that time.</p> 多谢~~~ TKS haoTHANK
SO MUCH TO YOU回复：（sjky）每日一练F4（ENG） 答案回复可见
<p>xx</p> 谢谢诶 xx页:
[1]