Breach of Duty Flashcards
Blyth v Birmingham Waterworks tells us that a defendant must….
(a)
…avoid causing harm to those to whom they owe a duty.
(b)
…behave to the best of their abilities.
(c)
… act as a prudent and reasonable person would.
(c) … act as a prudent and reasonable person would.
The most important thing to learn from Nettleship v Weston is that:
(a)
A person will be required to meet the standard appropriate for the act they are carrying out.
(b)
No allowance is made for the fact that someone is learning to do something when determining the standard of care they are required to meet.
(c)
A person will be required to act with all reasonable care and skill.
(a) A person will be required to meet the standard appropriate for the act they are carrying out.
When determining if there has been a breach of duty, you must first ascertain the standard of care, and secondly ascertain if the defendant has fallen below that standard. Which of the following statements is correct in relation to those issues?
(a)
Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact.
(b)
Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of law.
(c)
Ascertaining the standard of care is a question of fact, ascertaining whether the defendant has fallen below it is a question of law.
(d) Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of fact.
(b) Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of law.
Well done. This means that when considering whether the defendant has fallen below a given standard of care, precedents can give you useful principles, but each case will turn on its facts.
If a defendant was to be able to show that he or she acted in accordance with usual or common practice, this would…
(a)
…show that the defendant did not breach its duty.
(b)
…not be relevant when determining breach.
(c)
…make it less likely that the defendant breached his or her duty.
(c) …make it less likely that the defendant breached his or her duty.
This would help the defendant, but it is still possible that a defendant has been negligent even if acting in accordance with usual or common practice, for example if the common practice was illogical: see Re Herald of Free Enterprise.
Which of the following best expresses the meaning of the ‘state of the art’ defence?
(a)
The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
(b)
The courts must assess the defendant’s actions against the best practice (‘state of the art’ practice) in the particular field / profession concerned.
(c) The defendant will have a defence to a claim if there were others in the field / profession acting as it did.
(a) The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
According to the case of Bolam v Friern HA, which of the following best describes the test for determining whether the defendant has fallen below the professional standard of care?
(a)
A professional is not guilty of negligence if they followed common practice in their particular field.
(b)
A professional is not guilty of negligence if another professional in their field supports the practice they adopted.
(c)
A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
(c) A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
An approach will be in accordance with a responsible body of opinion if:
(a)
At least 1 per cent of professionals in the field concerned have that opinion.
(b)
At least 10 per cent of professionals in the field concerned have that opinion.
(c)
At least 50 per cent of professionals in the field concerned have that opinion.
(d)
It is not possible to say a specific percentage would constitute a responsible body of opinion.
(d) It is not possible to say a specific percentage would constitute a responsible body of opinion.
The answers which give a specific percentage are wrong for two reasons. Firstly, the courts have not fixed a percentage on ‘responsible body’. Secondly, whatever percentage of people hold an opinion, the court must separately consider whether that opinion is responsible. Even in a professional context, the court can find a common professional practice to be negligent.
Which of the following best summarises the key learning point from Montgomery v Lanarkshire Health Board?
(a)
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
(b)
Medical professionals are generally obliged to advise patients on those material risks and alternative treatments in a manner consistent with a responsible body of medical opinion.
(c)
Medical professionals are generally obliged to advise patients on all risks and alternative treatments.
(d)
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments in any areas which the patient has expressed an interest in.
(a) Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
This is exactly what the court said. When it comes to advising in relation to risks, the court has determined what approach a medical professional should take, rather than leaving this to the medical professionals to determine: it is not enough to act in a manner consistent with a responsible body of medical opinion. It is probably true that a medical professional must advise in relation to areas the patient has expressed an interest in, but this alone would not be sufficient. A medical professional is not obliged to advise on all risks and alternative treatments – this would impose too great a burden on medical professionals and would be unhelpful for patients.
What are the two stages to establish breach of duty?
- Standard of care to be expected of D must be established - question of law
- All facts and circumstances need to be examined to see if D has fallen below that standard ie breached duty - question of fact
True or false: it is the actor that we assess when we are establishing breach of duty.
False - it is the act, not the actor.
Examples:
Nettleship v Weston: A learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for her lack of experience. The act (driving) set the standard; it was not adjusted to the actor (a learner driver).
Wilsher v Essex : A junior doctor was judged according to the act he was undertaking, not his level of inexperience. It was held that a lower standard of care did not apply to those training within a profession. A uniform standard of care had to be adopted otherwise: ‘inexperience would frequently be urged as a defence to an action for professional negligence’.
Condon v Basi: It was suggested that a higher degree of care would be required of a first division footballer than that of a local league player. Thus the standard of care in competitive sports is objective in differing sets of circumstances.
What is the professional standard for breach of duty?
Standard based on what reasonable professional in that field would have done, rather than what reasonable person would have done
Bolam: test is standard of ordinary reasonable man exercising and professing to have that special skill
What are the only two categories of people which have a lower standard of care than others?
- Children: Standard required will be that of reasonable child of D’s age carrying out that act
- Illness/disability: if D is completely unaware of that disability or illness at time of potential breach, courts might lower standard of care expected of D
What factors should be considered when assessing breach?
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefit of D’s conduct
- Common practice
- State of the art defence
- Sport
remember it is a balancing exercise
What constitutes a responsible body in professional negligence?
De Freitas v O’Brien: such body does not have to represent majority of opinion, merely an acceptable one - 11 spinal surgeons out of 1,000 orthopaedic and neurosurgeons were responsible body given qualifications and experience even though vast majority did not support opinion
When does Bolam not apply in professional negligence?
Bolam does not apply when considering whether medical professional is in breach of duty for failure to warn of risks of procedures
Court stated that Bolam is concerned with exercise of professional expertise - however, some decisions that eg doctor makes are not connected with medical expertise
Decision about whether or not to advise as to risks was such a decision - had more to do with way in which doctor-patient relationship should be viewed than it did medical expertise and so Bolam is not relevant when considering failure to advise as to risks
