2. Breach of Duty

Question 1

What is the standard of care?

Answer 1

The level of care expected from a person in a given situation.

Question 2

What is the ‘reasonable person’ test?

Answer 2

A test to determine if a person met the standard of care expected of a reasonable person.

Question 3

What is the professional standard of care?

Answer 3

The standard of care expected from a professional in their field.

If a defendant presents themselves as a specialist, eg a consultant surgeon rather than a
general practitioner, then they will be expected to meet that higher standard

Question 4

What is the Bolam test?

Answer 4

A test to determine if a professional showed the same degree of skill as a reasonable professional in their field.

Question 5

What is the duty of professionals in relation to new developments?

Answer 5

Professionals have a duty to keep up to date with new developments in their field.

Question 6

What is breach in relation to professional standard of care?

Answer 6

Determining if a professional acted in accordance with a responsible body of professional opinion.

That being said the final say goes to judge: this could lead to a situation in which members of the relevant profession were
the judges of negligence rather than the court itself. Therefore, case law has recognised
that it is always for the court finally to decide whether or not a skilled defendant has acted
reasonably.

HOWEVER

in a particular
case a claimant might be able to demonstrate that the professional opinion relied on by the
defendant is not capable of withstanding logical analysis. In that situation, the court would be
able to find the defendant in breach of duty (notwithstanding that they could point to some
opinion in his support)

Question 7

What is the test for medical cases?

Answer 7

Determining if a professional failed to advise on material risks and alternatives.

Question 8

What are material risks?

Answer 8

Risks that a reasonable patient would likely attach significance to.

Question 9

What is the general standard of care?

Answer 9

The standard of care expected from a reasonable person regardless of their experience.

Question 10

What is the significance of possession of skill?

Answer 10

If a person undertakes a task that requires a specific skill they do not possess, it is likely to be considered negligent.

Question 11

What is the standard of care for child defendants?

Answer 11

Child defendants must meet the standard reasonably expected of an ordinary child of the same age.

Question 12

Is there a fixed age at which a child cannot be liable in negligence?

Answer 12

No, there is no fixed age at which a child cannot be liable in negligence.

Question 13

How does the age of a child affect their ability to foresee harm to others?

Answer 13

The younger the child is, the less likely they are able to foresee harm to others.

Question 14

Can a child under 18 be sued or sue without representation?

Answer 14

No, a child under 18 cannot be sued or sue without an adult representing them as a litigation friend.

Question 15

What factors does the court consider when assessing breach of the standard of care?

Answer 15

The risk created by the defendant’s actions, the precautions the defendant should have taken, and the magnitude of the risk.

Question 16

What are the four elements the court considers when establishing breach?

Answer 16

Likelihood of harm, seriousness of injury, utility of the defendant’s activity, and the burden of taking precautions.

Question 17

How does the likelihood of harm affect breach?

Answer 17

Greater risk of harm increases the chance of the defendant being in breach.

Question 18

How does the seriousness of injury affect breach?

Answer 18

More serious injuries require greater care from the defendant.

Question 19

How does the utility of the defendant’s activity affect breach?

Answer 19

The court balances the risk against the ends to be achieved by the defendant’s activity.

Question 20

What are precautions?

Answer 20

Steps taken to prevent harm.

Question 21

What is the significance of taking precautions?

Answer 21

Determines if the cost was disproportionate.

Question 22

What is the magnitude of risk?

Answer 22

Combination of likelihood and seriousness of harm.

Question 23

Define likelihood of harm.

Answer 23

The higher the risk, the more precautions are required.

Question 24

What is the relationship between risk of harm and care?

Answer 24

Greater risk requires more care.

Question 25

What factors are considered in determining reasonableness?

Answer 25

Defendant’s purpose and public interest.

Question 26

What is the approach in determining if precautions were taken?

Answer 26

Consider circumstances, practical measures, and costs.

Question 27

What happens if the risk of harm can be substantially reduced at low cost?

Answer 27

Failure to take precautions is deemed unreasonable.

Question 28

What if incurring great expense only results in a small reduction of risk?

Answer 28

It is reasonable for the defendant to do nothing.

Question 29

What happens when the risk of injury is great?

Answer 29

Greater steps are expected to be taken even if that entails great expense.

Question 30

What is the Impecuniosity Rule?

Answer 30

Lack of resources is not a defense for failure to exercise reasonable care.

Question 31

What is the significance of defendant’s purpose?

Answer 31

Determines the degree of risk justifiably taken.

Question 32

How does the purpose of D’s activity affect their liability?

Answer 32

No social utility or unlawful actions require a high degree of care.

if human life is at stake, a defendant may be justified in taking ABNORMAL risks.

However,the case is NOT authority for the proposition that the purpose of saving life or limb justifies the defendant taking ANY risk.

The emergency services can, therefore, still be liable in negligence by, for example, ignoring a red traffic light and/or failing to use their sirens.

Question 33

What is the role of common practice in negligence cases?

Answer 33

Compliance with accepted practice may help escape liability.

Question 34

What is the current state of knowledge?

Answer 34

D’s actions are judged by the standard of current knowledge + what a reasonable person would have seen in the circumstances.

Question 35

What burden does the claimant have in proving breach of duty?

Answer 35

The claimant must prove breach on the ‘balance of probabilities’.

i.e. more likely than not that def breached their DOC

Question 36

What does ‘balance of probabilities’ mean?

Answer 36

C must prove that it was more likely than not that D was in breach of the duty of care.

Question 37

What are the ways to prove breach of duty?

Answer 37

Witnesses of fact and expert witnesses.

Question 38

What is the maxim of res ipsa loquitur?

Answer 38

The thing speaks for itself.

Question 39

When does the maxim of res ipsa loquitur assist the claimant?

Answer 39

When there are no witnesses.

Question 40

What are the conditions for the application of the maxim of res ipsa loquitur?

Answer 40

Thing causing damage is controlled by D or someone D is responsible for, incident would not normally happen without negligence, cause of the incident is unknown to the claimant.

Question 41

What happens if the maxim of res ipsa loquitur is applied?

Answer 41

It raises a prima facie inference of negligence against the defendant.

Question 42

What does the defendant need to evidence if the maxim of res ipsa loquitur is applied?

Answer 42

How the accident actually happened and that it was not due to negligence on their part, or if they cannot show how the accident happened, that they had used all reasonable care.

Question 43

What is the effect of the Civil Evidence Act 1968?

Answer 43

A defendant convicted of a criminal offence is presumed to have committed that offence in subsequent civil proceedings.

Question 44

What is the purpose of using a criminal conviction in civil proceedings?

Answer 44

To prove that the defendant fell below a reasonable standard of care.

Question 45

When can a claimant rely on a criminal conviction as evidence?

Answer 45

When the conviction involves careless conduct.

Question 46

Does a claimant need to prove the defendant’s careless conduct again in civil proceedings if there is a criminal conviction?

Answer 46

No, the claimant can rely on the conviction as evidence.

Question 47

What is an exception to using a criminal conviction as evidence in negligence claims?

Answer 47

When the conviction is unrelated to the claim, such as driving without insurance.

Question 48

Does a criminal conviction for driving without insurance provide evidence of careless driving?

Answer 48

No, it is not relevant to a claim in negligence.

Question 49

Can a claimant use a criminal conviction for careless conduct as evidence in a negligence claim?

Answer 49

Yes, it can be used to prove the defendant’s failure to drive carefully.