Breach of Care Flashcards
what is the general rule for standard of care?
D must behave as a reasonable person would in all the circumstances.
(courts will look at the particular circumstances that the D aced and ask what the reasonable person would have had in contemplation in those circumstances).
standard of care is based on the act and not the actor?
e.g nettleship v weston- learner driver judged to competent driver.
wilsher v essex- junior doctor assessed to same standard as fully qualified doctor.
professional standard of care?
bolam- ordinary reasonable man exercising and professing to have that special skill.
standard of care for children?
reasonable child of the D’s age carrying out that act.
illness and disability and standard of care?
e.g D unknowingly suffered a stroke but knew his consciousness had been impaired so was held to be negligent.
what are the two parts of establishing a breach of duty?
- standard of care- question of law
- fallen below that standard- question of fact.
what are the factors relevant to breach of duty?
- likelihood of harm- more likely the harm=more likely the breach.
- magnitude of harm- greater care is needed if risk of injury is high.
- practicality of precautions- how easily the risks could have been avoided.
- Benefit of d’s conduct- value to society.
- common practice- acted in accordance with a practice usually followed by others in the field.
- state of the art defence- D’s actions against the knowledge in the profession and/or accepted practice at the time of the breach.
- sport- likely to take risks in the heat of the moment.
what is res ipsa loquitur?
the facts speak for themselves
- the thing causing the damage was under the control of the D or someone they are responsbiel for.
- the accident would not normally happen without negligence.
- cause of the action is unknown tot he claimant.
D proves they WERE NOT NEGLIGENT.
when does the bolam test for professional negligence not apply?
if a medical professional is in breach of a failure to warn of risks of procedures.
Doctors owe a duty to ensure patients are aware of any material risks involved in any recommended treatment and of any reasonable person in the patient’s position would be likely to attach significance to, or the doctor should reasonably be aware that the particular patient would be likely to attach significance to.
what is the bolam test for medical negligence?
if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular act.
what is the state of the art defence?
Court must assess the D’s actions against the knowledge in the industry at the time of the alleged breach.
