1 - Tort - Duty of Care

Question 1

What are the 2 stages for considering whether D has breached DoC?

Answer 1

1. Standard of Care
2. Has D fallen below standard of care?

Question 2

What is the definition on ‘standard of care’?

Answer 2

• That of a reasonably competent person
• Professionals: standard of a reasonable professional, focusing on act, not actor (standard not lowered/raised for experience)
• For professionals, apply Bolam test: not in breach where they’ve acted in accordance w/ practice accepted by responsible body skilled in that field

Question 3

When is the Bolam test not applied for professionals?

Answer 3

For medical professionals who failed to advise a patient properly of material risks - must make patient aware of material risks & any reasonable alternative treatments (particularly ones they’d attach significance to)

Question 4

How does illness/disability affect standard of care imposed?

Answer 4

When they’re aware of impairment, should act accordingly - failure to do so, may mean they’re negligent
If they had no idea before act, SoC adjusted

Question 5

What factors are considered when determining if the D fell below the SoC?

Answer 5

• Likelihood of harm 🔮
• Magnitude of harm 💥
• Practicality of preventing harm 😮‍💨
  .
• Benefit of D’s conduct 🎁
• Common practice (court can rule the common practice itself is negligent) 🤠
  .
• ‘State of the art’ defence: assess D’s knowledge against that of profession 🔬
• Sport ⚽️

Question 6

How does the ‘state of the art’ defence work under breach?

Answer 6

Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence

Question 7

How does sport work as a factor considered under breach?

Answer 7

Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed