Breach Of Duty

Question 1

What is the standard of care?

Answer 1

The standard of care is the general rule that a defendant must behave as a reasonable person would in all circumstances.

Question 2

What are the two stages in determining a breach of duty?

Answer 2

First, establish the standard of care expected of the defendant; second, examine if the defendant has fallen below that standard.

Question 3

How is the standard of care determined?

Answer 3

The standard of care is determined by what a reasonable person would do in the same circumstances.

Question 4

What is the classic description of the standard of care?

Answer 4

Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.

Blyth v Birmingham Waterworks (1856) 11 Exch 781

Question 5

What is the reasonable person standard?

Answer 5

The reasonable person standard is an objective test that considers the particular circumstances faced by the defendant.

Question 6

What did Lord Macmillan state about the standard of foresight?

Answer 6

The standard of foresight of the reasonable man is impersonal and eliminates personal biases.

Question 7

What is the professional standard of care?

Answer 7

The professional standard is based on what a reasonable professional in that field would have done.

Question 8

What was established in Bolam v Friern Hospital Management Committee?

Answer 8

The test for breach is the standard of the ordinary reasonable man exercising that special skill.

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Question 9

How does the standard of care apply to children?

Answer 9

Children are held to the standard of a reasonable child of their age.

Question 10

What was the ruling in Mullin v Richards regarding children?

Answer 10

The court held that the correct test is whether a reasonable and careful 15-year-old would have foreseen the risk of injury.

Mullin v Richards [1998] 1 All ER 920

Question 11

What factors are considered when establishing a breach of duty?

Answer 11

Factors include likelihood of harm, magnitude of harm, practicality of precautions, and the benefit of the defendant’s conduct.

Question 12

What did the court rule in Bolton v Stone regarding likelihood of harm?

Answer 12

The court found no breach as the likelihood of injury was very small, given the circumstances.

Bolton v Stone [1951] AC 850

Question 13

What is the significance of magnitude of harm?

Answer 13

If the potential injury is serious, greater care is required than if the risk is of minor injury.

Question 14

What was established in Paris v Stepney Borough Council?

Answer 14

The defendant was liable for not providing protective goggles to an employee with only one good eye, despite the small risk of injury.

Paris v Stepney Borough Council [1951] AC 367

Question 15

What is the practicality of precautions?

Answer 15

The court assesses how easily the risk could have been avoided and balances the cost and practicality of precautions against the severity of the risk.

Question 16

What was held in Latimer AEC Ltd regarding practicality of precautions?

Answer 16

The defendant was not liable as the precautions taken were reasonable given the circumstances.

Latimer AEC Ltd [1953] AC 643

Question 17

How does the benefit of the defendant’s conduct factor into breach of duty?

Answer 17

If the defendant’s actions aimed to preserve life or property, this may justify taking certain risks.

Question 18

What does the Compensation Act 2006 s 1 state?

Answer 18

Courts may consider the deterrent effect of potential liability on socially desirable activities when determining negligence.

Question 19

What does the Social Action, Responsibility and Heroism Act 2015 require?

Answer 19

Courts must consider if the person was acting for the benefit of society or demonstrating a responsible approach when assessing negligence.

Question 20

What is the common practice defense?

Answer 20

If a defendant acted in accordance with common practice in their field, it may help them avoid liability.

Question 21

What is the ‘state of the art’ defense?

Answer 21

This principle assesses a defendant’s actions against the knowledge and accepted practices at the time of the alleged breach.

Question 22

What did Roe v Minister of Health establish regarding unforeseeable risks?

Answer 22

The court held that unforeseeable risks cannot be anticipated, and failing to guard against them is not negligence.

Roe v Minister of Health [1954] 2 QB 66

Question 23

What is the standard of care in sports?

Answer 23

Participants in sports are likely to take risks, and only reckless disregard for safety constitutes a breach.

Question 24

What is the balancing exercise in determining breach?

Answer 24

All relevant factors, including likelihood of harm, magnitude of harm, practicality of precautions, and benefits, must be balanced.

Question 25

What is the burden of proof in establishing breach?

Answer 25

The claimant must prove that it is more likely than not that the defendant breached their duty of care.

Question 26

What does s 11 of the Civil Evidence Act 1968 state?

Answer 26

If the incident led to a criminal prosecution, the claimant may rely on any resulting conviction as evidence of careless conduct.

Question 27

What is res ipsa loquitur?

Answer 27

This maxim allows claimants to infer negligence when the only plausible explanation for their injuries is the defendant’s negligence.

Question 28

What was established in Scott v London and St Katherine Docks?

Answer 28

The court inferred negligence when large sacks of sugar fell on the claimant, as they were in the defendant’s control.

Scott v London and St Katherine Docks & Co (1865) 3 H&C 596

Question 29

What is the only plausible explanation for the claimant’s injuries?

Answer 29

Negligence by the defendant.

If the maxim applies, it will then be for the defendant to adduce evidence that shows that they were not negligent.

Question 30

What case illustrates the application of res ipsa loquitur?

Answer 30

Scott v London and St Katherine Docks & Co (1865) 3 H&C 596.

The claimant was injured when large sacks of sugar fell onto her, and the court inferred negligence due to the defendant’s control over the sacks.

Question 31

What are the three conditions for the maxim to apply?

Answer 31

1. The thing causing the damage was under the control of the defendant or someone they are responsible for.
2. The accident would not normally happen without negligence.
3. The cause of the accident is unknown to the claimant.

Question 32

What must be established to prove breach of duty?

Answer 32

All the facts and circumstances must be examined to see if the defendant has fallen below the standard of care.

This is a question of fact.

Question 33

What factors do courts consider when establishing breach of duty?

Answer 33

1. Likelihood of harm
2. Magnitude of harm
3. Practicality of precautions
4. Any benefit of the defendant’s conduct
5. Common practice
6. ‘State of the art’ at the time of breach
7. Special rules in relation to sport.

Question 34

How must the claimant prove breach of duty?

Answer 34

On the balance of probabilities.

Question 35

When does the Bolam Test not apply?

Answer 35

When considering whether a medical professional is in breach of duty for a failure to warn of risks of procedures.

Question 36

What was the key case regarding failure to advise on risks?

Answer 36

Montgomery v Lanarkshire Health Board [2015] UKSC 11.

The claimant argued she should have been warned of the risks of shoulder dystocia during delivery.

Question 37

What is a material risk in medical treatment?

Answer 37

A risk that a reasonable person in the patient’s position would likely attach significance to, or that the doctor should reasonably be aware the patient would attach significance to.

Question 38

When can a medical professional withhold information about a risk?

Answer 38

If they reasonably consider that its disclosure would be seriously detrimental to the patient’s health.

Question 39

What did the court state about the Bolam test?

Answer 39

The Bolam test is concerned with the exercise of professional expertise, but decisions about advising risks are not connected with medical expertise.

Question 40

What did the Supreme Court confirm in McCulloch regarding the Bolam Test?

Answer 40

The Bolam Test does not apply to the obligation to ensure that the patient is aware of any material risks involved in recommended treatment.

Question 41

What is the starting point for determining if a defendant has fallen below the professional standard of care?

Answer 41

The Bolam Test.

Question 42

What does the Bolam Test establish?

Answer 42

Professionals are not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.

Question 43

What can lead to a professional being found negligent despite following common practice?

Answer 43

If the court concludes that the ‘practice accepted as proper’ does not withstand logical analysis.

Question 44

What duty do medical professionals have regarding patient awareness?

Answer 44

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.