2. Factors Considered in Determining Breach of the Standard of Care
- court will consider 4 factors:
1. probability of occurance
2. probability of grave/serious harm
3. cost of risk avoidance
4. socail utility of the D’s conduct
a) PROBABILITY AND SEVERITY OF THE HARM
US v Carrol Towing Co. [1947]- owners duty to prevent break away of barge is a function of three variables: the probablity that she will break away, the gravity of the resulting injury if she does, and the burden of adequete precuations - situation is one whihc custom should control
applies Hands Theorem
P = probability B = burden L = gravity of resulting injury
so
P * L > B = liabilty in negligence Plaintiff wins and loss is reallocated to Defendant
P * L < B = Plaintiff loses, risk remains with the Plaintiff, no negligence
Bolton v Stone [1951]- cricket ball hits plaintiff walking down road near cricket field
Test: whether risk of damge is so small that reasonable person in position of D would see fit to refrain from taking chances to prevent danger (balance forseeabilty of harm with seriousness of harm) test of fact
held: risk of harm so small that even in consideration of safety a reasonable man would disregard risk, therefore no neg’ce
Miller v Jackson [1977] - cricket balls form club flying into backyardinterfering w’ use and enjymennt, but Lord Denning is a cricket fan so wants to protect the cricket club
- approaches case by balancing interests of the public with those of private individuals
- cricket club hads excersissed all rasonable care, offered to settle, impt. that cricket club
was there first
- in consideration of socail utilty, cricket club and players doing what they are entitled to do,
Paris v Stepney Borough Council [1951] - does an employer have a duty to provide a one eyed worker with goggles when they are not provided to workers who have two eyes?
- balancing the remoteness of harm occuring with potential for graver damage which would befall a one eyed worker
- majority precaution so inexpensive and risk of blindness in event of injury so prudent employer should provide goggles
- minority -no neg;ce, cannot say a one eyed man would have a remedy where atow eyed man would not (either neg;t for not providing at all, or say risk too remote to necessitate provision)
b) COST OF RISK AVOIDANCE
Vaughn v Halifax Dartmouth Bridge Comm.(1961) - wind causes paint to splatter from bridge being painted to car park below
held: defendant negligent, b/c although painting season is short, and damage minimal, cost of risk avoidance (ie posting sign) so low that it should have been undertaken
Law Estate v SImice [1994] -physicians responsiblity to individual patient must take precedence over responsibilty to keep costs of meidcare down - negligent in not ordering CAT scan
c) SOCIAL UTILITY
Watt v Hertfordshire County Council [1954] - jack needed to respond to call, truck to whcih it was fitted unavailable -became dislodged and injured P when driver braked suddenly
- claim in negligence rejected, when risk of loading jack balanced againdst end being achieved (putting out the fire)
Priestman v Colangelo [1959] - during a high speed chase cop shot at chasee who subsequently hit the curb killing 2 wome - was cop negligent in shooting?
- no neg’ce cop acting within scope of duty to protect the common good and loss was one that should be borne by community
-dissent: b/c guy was only a theif this was not worht the loss of only two innocent lives, cop should have forseen potential consequences of his action
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