2 - TORT - Breach Flashcards
What must one prove for negligence?
Duty of Care
Breach
Causation
Remoteness
What are the 2 stages for considering whether D has breached DoC?
- Standard of Care
- Has D fallen below standard of care?
What is the definition on ‘standard of care’?
- 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
standard of care - What cases cover ‘act not the actor’
- learner driver judged as ordinary competent driver (no allowance for learner) 🚙
- junior doctor standard is same as doctor (but may avoid breach is advice sought from senior doctor) 🧑⚕️
- but pro footballer held to higher standard of care than casual player. ⚽️
standard of care - what is the general standard of care owed by a professional?
“ordinary reasonable man exercising and professing to have that special skill”
standard of care - When is the Bolam test not applied for professionals?
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)
- not negligent if accordance with a responsible body of medical men (need not be majority 11 out of 1,000 spinal surgeons was enough)
- But, is possible for the professional opinion to be unreasonable (just very unlikely)
How does illness/disability affect standard of care imposed?
- When they’re aware of impairment, should act accordingly - failure to do so, may mean they’re negligent
D suffered stroke 🫳🐈& aware consciousness impaired - SoC = ordinary driver - If they had no idea before act, SoC adjusted
D suffered hypoglycaemic attack 💉🍫but did not know it - SoC = has that impairment
What factors are considered when determining if the D fell below the SoC?
- 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
SoC - What are the cases for determining the likelihood of harm?
- cricket ball out of field with fence - happened 6 times in last 30 years - risk too remote 🏏
- Blind V fell down hole - D protected against sighted persons but not blind - risk likely enough 🕳️🧑🦯✅
SoC - What are the cases for determining the magnitude of harm?
- employee had one good eye but no goggles provided - risk was small but impact was big therefore DoC held.
🥽👁️🧑🦯 - boxers should be provided with ring-side medical care as risk was brain injury
🥊🧑⚕️
SoC - What are the cases for determining the practicality of precautions?
- slippery factory floor following a flood - 3t of sawdust had been laid down. Other measures were not practical 🏭 🌊
SoC - What are the cases for the benefit of D’s conduct?
Fireman injured as equipment not properly stowed - no breach as risk small and utility high 👨🚒🤕
How does the ‘state of the art’ defence work under breach?
Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence.
- Anaesthetic stored in glass with invisible cracks - staff could not be expected to know of danger. 💉
- risk highlighted by one academic article not sufficient to alert doctor to the risk.
How does sport work as a factor considered under breach?
Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed