2 - TORT - Breach

Question 1

What must one prove for negligence?

Answer 1

Duty of Care
Breach
Causation
Remoteness

Question 2

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

Answer 2

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

Question 3

What is the definition on ‘standard of care’?

Answer 3

• 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 4

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

Answer 4

• 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. ⚽️

Question 5

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

Answer 5

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

Question 6

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

Answer 6

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)

Question 7

How does illness/disability affect standard of care imposed?

Answer 7

• 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

Question 8

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

Answer 8

• 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 9

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

Answer 9

• 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 🕳️🧑‍🦯✅

Question 10

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

Answer 10

• 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
  🥊🧑‍⚕️

Question 11

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

Answer 11

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

Question 12

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

Answer 12

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

Question 13

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

Answer 13

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.

Question 14

How does sport work as a factor considered under breach?

Answer 14

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