Breach of Duty Flashcards
Standard of care (Test - Common Practice)
The ‘reasonable person test’
The objective nature of the test
Act, not the actor
Standard of care (Test - Professional Standard)
d
Case -
Professional Standard
Factors relevant to breach
Likelihood of harm * Magnitude of harm * Practicality of precautions * Benefit of Defendant's conduct Common practice 'State of the art' defence Sport
Establishing breach is very much a …
… balancing act between likelihood of harm, magnitude of harm and practicality of precautions. (And where relevant benefit of conduct and common practice).
Bolam Test
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.
The Bolam Test does not apply …
…. when a medical professional fails to advise a patient of risks. The test of materiality applies instead.
Two stages in determining whether there has been a breach of duty
(1) STANDARD OF CARE to be expected of the defendant must be established. This is a question of LAW.
(2) Once this has been ascertained, all the facts and circumstances must be examined to see if the defendants has fallen below that standard, i.e. BREACHED THE DUTY. This is a question of FACT.
Case - Blyth v Birmingham Waterworks (1856)
Defendants must behave as a reasonable person would in all the circumstances.
(A person does not have to do everything possible to prevent harm. Rather they have to reach the standard of what a reasonable person would do).
Alderson B gave the classic description o f the standard of care here.
Case - Glasgow Corporation v Muir (1943)
something to do with objective test??? (see slideshow 3)
Cases relevant to test ‘on the act and not the actor’
Nettleship v Weston (1971) {Drivers}
Wilsher v Essex AHA (1986) {Doctors - ‘act and not the actor’ DQ but principle can be used in other cases}
Condon v Basi (1985) {Competitive sports}
Bolam v Friern Hospital Management Committee (1957)
The test is the standard of the ordinary reasonable man exercising and professing to have that skill.
(A man need not possess the highest expert skill … sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art)
NB: ‘not negligent if he is acting in accordance with such a practice, merely because there is a body of medical opinion which takes the contrary view’
Professional Negligence
NOT a separate tort but a particular AREA where ordinary common law negligence applies and operates: the ‘act not actor’ principle points to a different standard of care for professionals.
When can a lower standard of care be applied?
Children
Illness and disability
Standard of care (Test - Children)
In the case of children, the standard required will be that of the reasonable child of the defendant’s age.
Case - Mullin v Richards (1998)
Standard required will be that of the reasonable child of the defendant’s age
Case - Roberts v Ramsbottom (1980)
Slideshow 3
Negligent; he was judged against the standard of the reasonable competent driver. He should have stopped the car as soon as he realised that his driving was being affected.
Case - Mansfield v Weetabix Ltd (1998)
Slideshow 3
The defendant should be judged in comparison with a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive. The driver was thus found NOT LIABLE.
Case - Bolton v Stone (1951)
Related to likelihood of harm (small)
Slideshow 4
Case - Haley v London Electricity Board (1964)
Related to likelihood of harm (not so small that it should be ignored)
Slideshow 4
