Breach

Question 1

What are the two stages of ‘breach of duty’?

Answer 1

1. Standard of care

2. Establishing whether the D has fallen below that standard of care

Question 2

Key elements of the standard of care test?

Answer 2

1. Reasonable man test (or professional standard/lower standard (children/illness))
2. Objective nature of the test
3. Act, not the actor

Question 3

Key elements of establishing a breach? i.e. the factors? (there are 8)

Answer 3

1 Usual or common practice
2 Benefit of D's conduct
3 Likelihood of harm
4 Sport
5 Magnitude of harm
6 'State of art' defence
7 Practicality of precautions
8 Breach cf. errors of judgment

Question 4

What’s meant by ‘usual or common practice in the context of professional negligence’?

Answer 4

The general principle is that a professional will NOT be in breach of duty if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that field (Bolam).
Does not apply when a medial professional fails to advise a patient of risks. The test of materiality applies instead.

Question 5

Where was the ‘reasonable man’ concept established?

Answer 5

Blyth v Birmingham Waterworks (1856)

Question 6

Who is the reasonable man? What are the cases?

Answer 6

Clapham Omnibus - Hall v Brooklands Auto Racing [1933]

Majority of people would have behaved this way - AC Billings & Sons Ltd v Riden [1958].

Question 7

Is standard of care absolute?

Answer 7

No - important - person does not have to do everything possible to prevent harm.

Question 8

Is the standard of care test objective or subjective?

Answer 8

Objective: however, despite this courts will look at specific circumstances and ask what reasonable man would have contemplated. (Glasgow Corporation v Muir [1943])

Question 9

What is meant by ‘act, not the actor’? What’s the case?

Answer 9

Might not be clear what standard to apply. See Nettleship v Weston [1971]: learner driver required to meet standard of care for act she was carrying out (driving).
See also Phillips v William Whiteley [1938]: jeweller required to meet standard of jeweller not surgeon.
Wells v Cooper [1958]: ameteur carpenter standard (changing door handle)
Condon v Basi [1985]: professional v local footballer.

Question 10

Key case re. professional standard?

Answer 10

Bolam v Friern Hospital Management Committee [1957]:
Facts: C requiring treatment for depression. Electro-convulsive therapy. Two thought lines re. use of relaxant drugs: if used, would have excluded risk of fractured pelvis which C suffered.

Question 11

Two key elements to come out of Bolam?

Answer 11

1. Standard of professional care: standard is based on what the reasonable professional in that field would have done.
2. Test to determine a breach (re. professional standard) ‘man need not possess highest expert skill…’

Question 12

Are professionals who claim to possess greater skill than normally possessed judged by ordinary standard or higher?

Answer 12

Ordinary: they may nevertheless be liable for breach of contract in certain situations if they fail to deliver the higher level of skill promised (Wimpey Construction UK Ltd v Poole [1984]

Question 13

Examples of lower standard?

Answer 13

Children: (Mullin v Richards [1998], Orchard v Lee [2009]
Illness: (Roberts v Ramsbottom [1980], Mansfield v Weetabix Ltd [1998]) both driving; different outcomes.

Question 14

Are lower standards applied to adults who are inexperienced?

Answer 14

No: see Wilsher v Essex AHA [1986] junior doctor case.

Question 15

Factors relevant to a breach: 1 usual or common practice concept and case?

Answer 15

If D can show acted in accordance with practice usually followed.
However; Re Herald of Free Enterprise The Independent, 18 December (1987) - court can rule PRACTICE was negligent in general.
Less expertise/judgment/knowledge in area, less weight to ‘common practice’ over likelihood/magnitude of harm etc.

Question 16

Factors relevant to a breach: 2 likelihood of harm concept and case?

Answer 16

The more likely someone is to get injured, the more likely it is that there will be a breach.
Bolton v Stone [1951]: C injured by cricket ball from pitch. Evidence showed unlikely (6 times 30 years 17ft fence).
Compare
Haley v London Electricity Board [1964]: blind C fell down hole in pavement dug by D. Risk to blind people not so small that it should be ignored. Act was negligent.

Question 17

Factors relevant to a breach: 3 magnitude of harm concept and case?

Answer 17

Seriousness of injury - greater care needed.
Paris v Stepney Borough Council [1951]: C had one good eye, employers knew. No protective goggles provided - became blind. Greater care should have been taken.
And
Watson v British Boxing Boxing Board of Control Ltd [2001]: boxing regulation board breached care to boxer - magnitude of harm great (serious brain damage)

Question 18

Factors relevant to a breach: 4 practicality of precautions concept and case?

Answer 18

How easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk.
Latimer v AEC Ltd [1953]: slippery factory floor, C slipped. D had taken precautions - only way to make safe would be to cease operations to employ many more to clean spills. NOT reasonable.

Question 19

Factors relevant to a breach: 5 benefit of D’s conduct concept and case?

Answer 19

If the defendant has taken a risk with the aim of preserving or protecting life, limb or property.
Watt v Hertfordshire County Council [1954]: fireman injured in fire engine due to equipment not properly secured on way to help woman trapped under lorry.
- No breach by employer - risk small saving life justified risk.
- Where human life is at risk, D may be justified in taking abnormal risks - NOT blanket exclusion for liability though.
COMPENSATION ACT 2006 s 1
SOCIAL ACTION, RESPONSIBILITY AND HEROISM ACT 2015 - compensation culture?

Question 20

Factors relevant to a breach: 6 sport concept and case?

Answer 20

When the defendant is participating in a sporting event, the demands of the game will be foremost in his mind and he is likely to take risks.
Wooldridge v Sumner [1963]: nothing short of reckless disregard for the claimant’s safety would constitute a breach.
Watson v Gray, The Times, 26 November 1998: held that there would be a breach of duty if the reasonable participant (of the defendant’s level) would have known that there was a significant risk re. injury.

Question 21

Factors relevant to a breach: 7 ‘state of art’ defence concept and case?

Answer 21

NOT defence. Courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Unforeseeable risks can obviously not be anticipated and, therefore, failing to guard against them will not be regarded as negligence.
Roe v Minister Of Health [1954]: Cs injury was paralysis due to spinal anaesthetic. Cracks had formed in glass vile - unknown to anyone. Court rejected claim - at time of operation staff could not be expected to know dangers of storing this way. Test was responsible body would have known at the time of court hearing.

Question 22

Factors relevant to a breach: 8 breach of errors of judgment concept and case?

Answer 22

Distinction to be made between an error of judgement and actual negligence. See Whitehouse v Jordan [1980].

Question 23

General relevance of The Wagon Mound (No 2) re. breach?

Answer 23

Balancing exercise principle: likelihood of harm against magnitude of harm against practicality of precautions and benefit of D’s conduct.

Question 24

Who does the burden fall on the prove the breach?

Answer 24

The claimant.
Heavy burden but may be assisted by Civil Evidence Act 1968 s11: If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results.

Question 25

What is the Bolam test?

Answer 25

Not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art…

Question 26

Does the bolam test only apply to the medical profession?

Answer 26

No - applies to other non-medical professions too.

Question 27

What constitutes ‘a reasonable body of opinion’?

Answer 27

Such a body does not have to represent the majority of opinion, merely an acceptable body.
De Freitas v O’Brien and Connolly [1995]: the body of medical opinion (concerning a particular medical procedure, a niche area of surgery) consisted of 11 consultants out of over 1000.

Question 28

Can a court find a common professional practice to be negligent?

Answer 28

Yes - however judiciary is reluctant to choose one medical body’s opinion over another.
Bolitho v City and Hackney Health Authority [1997]: not enough for D to show practice common place.
Central legal issue: whether or not non-intervention caused injury.
Lord Browne-Wilkinson acknowledged that would be ‘rare’ that judicial intervention justified. Rarely occurs, but Bolitho significantly showed it is an option.

Question 29

Example of the Bolitho principle in practice?

Answer 29

McGuinn v Lewisham and Greenwich NHS Trust [2017]: adequate care during pregnancy - would have shown problems/risks that would have led to terminating pregnancy.
Claim succeeded: D tried to show expert evidence, but court said inconsistent with scan measurements and lacked logical/rational basis.

Question 30

Original precedent and concept re. advising of risks?

Answer 30

Sidaway v Board of Governors of the Bethlem Royal Hospital [1984]: if a surgeon’s decision not to warn of risks conformed with a responsible body of medical opinion which would not have warned of the risk, then the surgeon would not be liable. Emphasis on C not asking re. the risks.

Question 31

What case departed from the Sidaway ruling?

Answer 31

Montgomery v Lanarkshire Health Board [2015]: during birth baby starved of oxygen: mother of small build and diabetic. Evidence shows diabetes can lead to larger babies. Mother argued should have been warned. Obstetrician argued no because risk so small.
Court agreed with C: after an extensive review of Sidaway and the cases that followed it, took a different view. The court described how times have moved on from the “doctor knows best approach”.

Question 32

Key element of Sidaway in relation to Bolam?

Answer 32

Whilst Bolam is concerned with exercise of professional expertise, some decisions that a doctor (for example) makes are not connected with medical expertise. The decision about whether or not to advise as to risks was such a decision: it had more to do with the way in which the doctor-patient relationship should be viewed than it did medical expertise. Bolam test is not relevant when considering a failure to advise as to risks – a medical professional is required to consider matters primarily from the patient’s point of view.

Question 33

Will the courts consider the emotional state of a patient when being told the medical risks involved?

Answer 33

Yes - Pearce v United Bristol Healthcare NHS Trust (1998): defendant medical professional successfully argued that, because the patient was distressed, it was not in their best interests to be given certain information.

Question 34

‘State of the art’ defence in a professional context?

Answer 34

‘State of the art’ may change particularly quickly in professional / expert areas.
Crawford v Charing Cross Hospital, The Times, 8 December 1953: blood transfusion: argument was that the anaesthetist should have been aware of such a risk from an article in the Lancet published six months earlier (the Lancet is a leading medical journal). Court rejected - impractical and unrealistic.

Question 35

In comparison to Crawford, what does he General Medical Council (GMC) now state re. doctors keeping up to date?

Answer 35

Doctors must do what is reasonable to keep up to date with new developments by going on professional development courses and case law suggests that they must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals (see Gascoine v Sheridan (1994)).

Question 36

Two elements re. usual common practice in context of professional negligence?

Answer 36

1. Bolam

2. Failure to advise re. risks.

Question 37

Key point from Montgomery re. risks?

Answer 37

Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.