Breach of duty

Question 1

Breach of duty means that

Answer 1

the defendant’s standard of care falls below the standard expected of the reasonable man doing the same activity, as in Vaughan v Menlove, and defined by Baron Alderson in BLYTH v BIRMINGHAM WATERWORKS.

Question 2

This is an

Answer 2

objective test, and the defendant’s characteristics are only considered in 3 situations:

Question 3

If D is a professional they are compared to a

Answer 3

reasonably competent professional and there must be a responsible body of professional opinion to support their actions (BOLAM v FRIERN BARNET HOSPITAL).

Question 4

The Bolam test was amended in

Answer 4

BOLITHO v HACKNEY HA so that a professional supporting the defendant must show a ‘logical basis’ for their view.

Question 5

In

Answer 5

MONTGOMERY v LANARKSHIRE HB it was established that a healthcare professional must make patients aware of all material risks so that patients can give informed consent to treatment (‘test of materiality’).

Question 6

If D is a learner/trainee they are compared to

Answer 6

a qualified person, as in NETTLESHIP v WESTON.

Question 7

If D is a child they are compared to

Answer 7

a child of the same age, as in MULLIN v RICHARDS.

Question 8

Here, D’s standard of care will be compared to that

Answer 8

of the

Question 9

The court will consider

Answer 9

‘Risk Factors’ which may raise or lower the standard of care.

Question 10

Firstly, if the

Answer 10

size of the risk of harm is high, the standard of care will be high, as in BOLTON v STONE.

Question 11

Here the size of the risk of harm to C was high

Answer 11

because

Question 12

Secondly,

Answer 12

special characteristics of the claimant may raise the standard of care, such as being vulnerable victim, or there being a serious potential injury, as in PARIS v STEPHNEY BOROUGH COUNCIL.

Question 13

Thirdly,

Answer 13

D is expected to take adequate precautions to reduce the risk, that are in proportion to the size of the risk in terms of cost and practicality, as in LATIMER v AEC LTD

Question 14

Here the cost of D taking precaution to reduce the risk was

Answer 14

low compared to the size of risk of harm because

Question 15

Fourthly,

Answer 15

the social utility of the activity may lower the standard of care as a matter of public policy, for example in an emergency situation, and will particularly apply to the emergency services, as in WATT v HERFORDSHIRE CITY COUNCIL.

Question 16

Here there

Answer 16

was

Question 17

To conclude,

Answer 17

D did