2 - TORT - Breach Flashcards

1
Q

What must one prove for negligence?

A

Duty of Care
Breach
Causation
Remoteness

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2
Q

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

A
  1. Standard of Care
  2. Has D fallen below standard of care?
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3
Q

What is the definition on ‘standard of care’?

A
  • 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
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4
Q

standard of care - What cases cover ‘act not the actor’

A
  • 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. ⚽️
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5
Q

standard of care - what is the general standard of care owed by a professional?

A

“ordinary reasonable man exercising and professing to have that special skill”

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6
Q

standard of care - When is the Bolam test not applied for professionals?

A

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)
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7
Q

How does illness/disability affect standard of care imposed?

A
  • 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
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8
Q

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

A
  • 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
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9
Q

SoC - What are the cases for determining the likelihood of harm?

A
  • 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 🕳️🧑‍🦯✅
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10
Q

SoC - What are the cases for determining the magnitude of harm? 💥

A
  • 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
    🥊🧑‍⚕️
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11
Q

SoC - What are the cases for determining the practicality of precautions? 😮‍💨

A
  • slippery factory floor following a flood - 3t of sawdust had been laid down. Other measures were not practical 🏭 🌊
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12
Q

SoC - What are the cases for the benefit of D’s conduct?

A

Fireman injured as equipment not properly stowed - no breach as risk small and utility high 👨‍🚒🤕

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13
Q

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

A

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.
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14
Q

How does sport work as a factor considered under breach?

A

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

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