Breach Flashcards
What is the general rule regarding the defendant’s behavior in legal circumstances?
The defendant must behave as a reasonable person would in all the circumstances.
Is lack of experience considered in determining a defendant’s behavior?
No account for lack of experience (driving/doctor).
What standard is applied to professionals in legal cases?
Standard applied as to what a reasonable professional would have done rather than a reasonable person.
Is a lower standard applied to junior doctors in legal cases?
Lower standard not applied to a junior doctor.
What standard is applied to children in legal cases?
Lower standard applied to children – reasonable child of that age.
What standard is applied to the ill or disabled in legal cases?
Lower standard applied to the ill/disabled as long as you were not acting aware that your ability/wellness was compromised.
How to determine breach
- what is the standard (q of law)
- has the D fallen below that standard (q of fact)
Breach factors
- magnitude of harm
- practicality of precautions
- benefit of D’s conduct (fireman saving life, not blanket)
- common practice (ferry, open doors)
- state of the art defence (cracks in ampoules)
What legal acts provide protection for individuals helping in emergencies?
Compensation Act and Social Action, Responsibility and Heroism Act.
Test for breach in a professional setting
- the standard is the standard of a reasonable person exercising and professing to have a particular skill
- did the defendant follow a practice acepted as proper by a responsibly body of professional opinion skilled in that particular art
Bolam
Medical negligence (2) extra cases
- courts can’t choose between ‘better’ medical opinions
- courts can ask Drs to justify their approach (Bolitho)
- ‘responsible body’ is NOT a majority (De Freitas v O’Brien)
What is the GMC’s position on doctors keeping up to date?
Doctors must do what is reasonable to keep up to date.
Failure to warn of risks
- Reasonably competent x
- The doctors have a duty of care to warn patients about any material risks involved in the treatment and of any reasoanble alternative or variant treatments.
‘material’ in context of failure to warn
- any risk that a reaosnable person in the patient’s position would attach significance to
anything that partiular patient might attach significance to
What is Res ipsa loquitor in negligence law?
It means the facts speak for themselves; when the only possible explanation for injuries is by the defendant, negligence can be assumed.
What are the requirements for applying Res ipsa loquitor?
- Whatever caused the damage must be under the control of the defendant
- The damage would not normally occur without negligence
- The cause of the accident must be unknown.
What happens to the burden of proof when there is a criminal conviction in negligence proceedings?
The burden of proof shifts to the defendant to prove they were not negligent.
