Breach of Duty Flashcards
What are the two stages in determining whether there has been a breach of duty?
First, the standard of care must be established.
Secondly, necessary to determine if the defendant has fallen below that standard of care.
What is the general rule for standard of care?
The defendant must behave as a reasonable person would in all the circumstances.
What does it mean that the standard of care is based `on the act not the actor’.
A learner driver is judged by the standard of an ordinarily competent driver.
A junior doctor was judged according to the act he was undertaking, not his level of experience.
the standard of care in competitive sports is objective in differing sets of circumstances.
Is a different standard of care required of professionals?
Yes, the standard is based on what the reasonable professional in than field would have done, rather than what a reasonable person would have done.
What standard of care is expected of children?
Standard of care will be that of the reasonable child of the defendant’s age carrying out that act.
What is the standard of care for illness and disability?
Can take into account sudden illness/disability which the defendant was unaware of.
What factors will the court take into account when establishing if there has been a breach?
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefit of D’s conduct
- Common practice
- `state of the art’ defence
- Sport
What is the purpose of the Compensation Act 2006, s1?
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
What is the Social Action, Responsibility and Heroism Act 2015?
The act requires that when a court is considering whether a person has been negligent, it must take into account whether the person was acting for the benefit of society or any of its members.
Who has the burden of establishing the defendant breached the duty of care?
The clamant must show this on the balance of probabilities.
What does Section 11 of the Civil Evidence Act 1968 do?
If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results e.g. dangerous driving.
What is res ispa loquitur?
It means the facts speak for themselves. The maxim is used where the only plausible explanation for the claimant’s injuries is negligence by the defendant. If the maxim applies it will then be for the defendant to adduce evidence that shows they were not negligent.
Following three conditions must be satisfied for the maxim to apply:
- The thing causing the damage was under the control of the defendant or someone they are responsible for;
- The accident would not normally happen without negligence; and
- The cause of the accident is unknown to the claimant i.e. the claimant has no direct evidence of the defendant’s failure to take care.
What is the starting point in relation to professional negligence cases and breach of duty?
If a professional can show they acted in accordance with a responsible body of professional opinion they will not be in breach of duty.
However, it will not always be enough for the defendant to show their practice was commonplace. If the opinion does not withstand logical analysis the defendant is in breach of duty.
What is the state of the art defence in a professional negligence context?
The courts must assess the defendant’s actions against the knowledge in the profession at the time of the alleged breach. Knowledge may change particularly quickly in professional areas.
- doctor cannot be expected to know knowledge published 6 months before breach.
- Doctors must do what is reasonable to keep up to date with new developments.
What is the position in relation to failure to advise in relation to risks (professional negligence?
Originally held that the Bolam test does not apply. Doctors are under an obligation to take reasonable care to `ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
However, a subsequent case held the Bolam Test does now apply to this part of the duty.
