2.1.2 Breach of Duty - Specific Principles Flashcards
How do we establish a breach of the duty of care owed by a defendant to a claimant?
Establishing breach is a two-stage test:
- How should a person in the defendant’s position have behaved in the circumstances (matter of law)
- How did the defendant actually behave? (matter of fact)
Did D go below the standard of care required?
How do we determine the standard of care required?
The standard of care is the level of care that a particular defendant is required to meet in a particular case - objective.
What would a reasonable person have done?
Certain characteristics are taken into account: whether a high standard has been fixed, defendant’s age, skilled defendants
How do children vary the standard of care imposed?
A child will not be held to the standard of a reasonably competent adult but will be expected to meet the standard of care of an ordinary, careful and reasonable child of their age.
The courts will look to see if there has been a high degree of carelessness in the child’s behaviour
How do skilled defendants vary the standard of care imposed?
If an individual professes specific skills and knowledge, they will be held to the standard of an ordinary skilled person professing to exercise the same skills and knowledge.
What happens if not all doctors agree on the appropriate action to take in a particular case?
Where a doctor acts in accordance with a responsible body of medical opinion…
… even if that body of medical opinion does not represent a majority of doctors, they will have met the requisite standard provided that the practice adopted is both reasonable and logical.
Why should time be noted as an important consideration for the relevant standard of medical professionals?
1) Time: The relevant standard is to be determined at the time the tort occurred. If practice within a particular profession has changed since the tort was committed (e.g new research findings or guidelines), it would not be appropriate to expect D to have adopted the later approach.
When would the courts decide if a medical practitioner is unreasonable or illogical?
Where there has been a denial of patient autonomy, such as where a doctor fails to warn a patient of a risk of treatment in circumstances where a reasonable person would attach significance to that risk.
What are other factors to consider to determine what a reasonable person would be done in a given case (standard of care)?
1) The risk of damage - the greater the risk, the more D might be expected to have done to guard against it.
2) The seriousness of the damage - the greater the likeliness of damage that would result should the risk materialise, the more D might be expected to do to guard against it.
3) The social utility of D’s activity - if it can be shown that D’s activity had wider social utility, it may help D to avoid liability
4) Whether ‘the thing speaks for itself’ - The fact that harm has been caused is enough on its own to suggest that D breached their duty.
5) The cost of prevention - D will be able to take the costs of taking precautions into account when deciding how to proceed.
