Breach of duty

Question 1

What is the general rule for the standard of care?

Answer 1

Reasonable person in all the circumstances

Question 2

What phrase can help when its not clear how to apply the reasonable person standard?

Answer 2

act and not the actor

Question 3

What is the standard of care for professionals?

Answer 3

What reasonable professional in that field would have done

Question 4

What is the standard of care for children?

Answer 4

Reasonable child of their age carrying out the act

Question 5

When might the standard of care be lowered for people with an illness/disability?

Answer 5

suffering illness reasonably unaware of

Question 6

What are the factors relevant to a breach of duty?

Answer 6

Likelihood of harm
Magnitude of harm
Practicality of precautions
Benefit of D’s conduct
Common practice
‘State of the art’ Defence
Sport

Question 7

What should you consider when thinking about the benefit of D’s act?

Answer 7

Compensation Act 2006 - whether it will prevent a desirable activity
Social Action, Responsibility and Heroism Act 2015 - Benefit to society/responsible approach/acting heroically

Question 8

What is the burden of proof for breach of duty of care?

Answer 8

Burden on the claimant
On the balance of probabilities

Question 9

What principles may asist for proof of breach?

Answer 9

s11 Civil Evidence Act
Res Ipsa Loquitur

Question 10

What does s11 Civil Evidence Act 1968 help with?

Answer 10

Can rely on conviction for injuries where it is evidence of careless conduct

Question 11

What are the three requirements for Res Ipsa Loquitur?

Answer 11

1. Thing causing damage under D’s control
2. Accident wouldn’t happen without negligence
3. Cause unknown to C

Question 12

What factors are relevant in professional negligence?

Answer 12

1. Bolam test (practice accepted by responsible body)
2. State of the art
3. Failure to advise of risks

Question 13

What is the Bolam test in a professional negligence context?

Answer 13

Practice accepted as proper by responsible body of professional opinion

Question 14

Does a body of opinion need to be a majority view under the Bolam test?

Answer 14

No

Question 15

What does Bolitho say in a professional negligence context?

Answer 15

professional opinion must withstand logical analysis

Question 16

What does Crawford say about professional negligence claims?

Answer 16

Not practical to know every new development BUT must keep up to date

Question 17

When is the Bolam test not used for medical negligence cases?

Answer 17

Failure to advise

Question 18

What was the test in Montgomery for failure to advise?

Answer 18

ensure aware of any material risks involved in any recommended treatment and of any reasonable alternative

Question 19

What is a material risk in the Montgomery test?

Answer 19

reasonable person in patient’s position would likely attach significance to/doctor should be aware the patient would attach significance to

Question 20

When will a doctor not breach their duty for failure to advise?

Answer 20

would be seriously detrimental to their health/necessity