Breach of duty Flashcards
How is a standard of duty established?
2 stages:
1- standard of care to be expected of the defendant must be established. (question of law)
2- court will consider if D has breached that standard (question of fact)
What is the test for standard of duty?
Reasonable person test
*lower standard of care did not apply to those training within a profession.
Does the same test for standard of duty apply to all individuals than it does to professionals?
No, Bolam case
standard is based on what the reasonable professional in
that field would have done,
What is the standard of care for children?
standard required will be that of the reasonable child of the defendant’s
age carrying out that act.
What factors are relevant to breach?
- likelihood of harm
- magnitude of harm (seriousness of injury)
- Practicality of precautions (how easily risk could have been avoided)
- benefit of D’s conduct
- common practice
- ‘state of art’ defence (breach at the time it was committed)
- sport
Who has the burden of proof for breach?
Claimant has burden to prove D breached duty of care.
What can claimant do where there is difficulty for them to prove D’s negligence?
Use res ipsa loquitur = “the thing speaks for itself”
When can res ipsa loquitur be applied?
- where cause of event is unknown; but
- event does not normally happen in absence of negligence; and
- D has control over that thing that caused damage.
According to the case of Bolam v Friern HA, how is the test for determining whether the defendant has fallen below the professional standard of care best described?
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.
What % of professionals are needed for it to constitute a responsible body of opinion?
It is not possible to say a specific percentage would constitute a responsible body of opinion.
- Firstly, the courts don’t have fixed a percentage on ‘responsible body’.
- Secondly, whatever percentage of people hold an opinion, court must separately consider if that opinion is responsible. Even in a professional context, the court can find a common professional practice to be negligent.
What is the rule for medical professionals when advising patients about treatments?
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
