Breach of duty Flashcards

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1
Q

What are the two stages in determining whether there has been a breach of duty?

A

Standard of care-question of law

Whether the D has fallen below that standard-question of fact

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2
Q

What is the usual test for the standard of care?

A

Reasonable person test-objective. The court will look at the circumstances the D faced and ask what the reasonable person would have had in contemplation.

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3
Q

What precedent did Nettleship v Weston (1971) hand down in relation to breach of duty?

A

A learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for lack of experience, the act of driving set the standard and not the actor.

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4
Q

What precedent did Wilsher v Essex AHA (1986) hand down in relation to breach of duty?

A

A junior doctor was judged according to the act he was undertaking, not his level of inexperience. A lower standard of care does not apply to those training within a profession.

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5
Q

What precedent did Condon v Basi (1985) hand down in relation to breach of duty?

A

Higher degree of care required of a first division footballer than a local league player. The standard of care in competitive sports is objective in differing circumstances.

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6
Q

What is the professional standard of care?

A

The standard is that of the ordinary reasonable man exercising and professing to have that special skill-Bolam v Friern Hospital (1957).

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7
Q

What is the standard of care required of children?

A

The standard required will be that of the reasonable child of the D’s age carrying out that act-Mullins v Richards (1998).

In this case, it was determined that schoolgirls couldn’t have foreseen the risk of injury from play fighting with rulers as the practice was common and not banned in school. They did not fall below the standard.

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8
Q

What is the standard of care required of a driver who is aware that his consciousness has been impaired?

A

The standard of the reasonably competent driver-Roberts v Ramsbottom (1980).

In this case, D unknowingly suffered a stroke before he drove into town but was aware his consciousness had been impaired. It was held that he was negligent as he should have stopped driving as soon as he realised he was affected.

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9
Q

What is the standard of care required of a driver who is unaware he is suffering a condition that impairs his ability to drive?

A

The standard of the reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive-Mansfield v Weetabix Ltd (1998).

In this case, a lorry driver crashed his vehicle after suffering a hypoglycaemic attack. There was no evidence to suggest that the driver knew his ability to drive was impaired.

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10
Q

What are the key elements the court consider when deciding if a defendant has fallen below the standard of care expected of them?

A

-Likelihood of harm
-Magnitude of harm
-Practicality of precaution
-Benefit of the defendant’s conduct

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11
Q

In relation to the likelihood of harm, describe the outcome of Bolton v Stone (1951) and Haley v London Electricity Board (1964).

A

The more likely someone is to get injured, the more likely it is that there will be a breach.

Bolton v Stone (1951): C injured by a cricket ball, which had happened 6 times in 30 years previously. There was also a 7 foot high fence around the ground. Chance of injury was slight therefore no breach.

Haley v London Electricity Board (1964): D had not taken precautions to protect a blind person from a hole they dug. The risk was not so small that it should be ignored-breach was established.

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12
Q

In relation to the magnitude of harm, describe the outcome of Paris v Stepney BC (1951).

A

If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.

Paris v Stepney BC (1951): D failed to provide protective goggles to the C who only had one good eye. C became blind when a piece of metal went into his good eye-breach was established as the consequences of any injury were serious (complete loss of sight).

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13
Q

In relation to the practicality of precautions, describe the outcome of Latimer v AEC Ltd (1953).

A

It is necessary to ascertain how easily the risk could have been avoided and to balance the cost/practicality of these precautions against the severity of the risk.

Latimer v AEC Ltd (1953): D’s factory floor became slippery after a flood and the C slipped. D had taken some precaution by laying sawdust but the only way to guarantee safety would’ve been to close down the factory-breach not established as closure was not justified given the small risk of injury.

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14
Q

In relation to the benefit of the defendant’s conduct, describe the outcome of Walt v HCC (1954).

A

The value to society of the defendant’s activity is a factor the courts consider. If the D has taken a risk with the aim of preserving/protecting life, this may be justified.

Walt v HCC (1954): a fireman was injured in a fire engine on the way to an emergency after equipment had not been properly secured. There was no breach at the risk of injury was small and ultimate aim of saving life justified the risk.

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15
Q

What does s1 Compensation Act 2006 state in relation to negligence claims?

A

A court may have regard to whether a requirement to take steps to meet a standard of care 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

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16
Q

What does the Social Action, Responsibility and Heroism Act 2015 state in relation to negligence claims?

A

A court considering negligence must take into account whether the person:

-was acting for the benefit of society
-demonstrated a predominantly responsible approach towards protecting the safety of others
-whether the alleged negligence occurred when the person was acting heroically

17
Q

What is the ‘state of the art’ defence and describe the outcome of Roe v Minister of Health (1954)?

A

The court must assess the D’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach. Unforeseeable risks cannot be anticipated and therefore failing to guard against them will not be regarded as negligence.

Roe v Minister of Health (1954): C suffered paralysis after being injected with anaesthetic which had become contaminated after the glass ampoules it was stored in cracked. Court held that at the time of the operation the staff could not be expected to know of this danger. The test to be applied was what a responsible body of medical opinion would know at the time of the operation (1947) and not the court hearing

18
Q

What constitutes breach of duty in relation to negligence claims in sport?

A

Nothing short of reckless disregard for C’s safety will constitute a breach-Woolridge v Sumner (1963).

There will be a breach if the reasonable participant of D’s level would have known that there was a significant risk that what they did could result in serious injury-Watson v Gray (1998).

19
Q

Who is the burden of proof on regarding breach of duty and what does s11 Civil Evidence Act 1968 state in relation to criminal prosecutions in civil claims?

A

Burden of proof is on C to prove that D breached their duty of care on the balance of probabilities.

s11 Civil Evidence Act 1968: C can rely on any criminal prosecutions against the D that arise out of the same event if the conviction is evidence of careless conduct.

20
Q

What does the doctrine of res ipsa loquitur mean?

A

The facts speak for themselves-only used when the only plausible explanation for the C’s damage/loss is negligence by the D.

It helps Cs who have difficulty proving exactly how an accident occurred.

21
Q

What three conditions must be satisfied for the doctrine of res ipsa loquitur to apply as stated in Scott v London and St Katharine Docks & Co (1865)?

A

Scott v London and St Katharine Docks & Co (1865): court inferred the doctrine of res ipsa loquitur after large sacks of sugar in the D’s control fell onto the C. 3 conditions must be satisfied for the maxim to apply:

  1. The thing causing the damage was under the control of the D/someone they are responsible for
  2. The accident would not normally happen without negligence
  3. The cause of the accident is unknown to the C
22
Q

Define the Bolam test in the context of clinical negligence.

A

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art-Bolam v Friern Hospital (1957).

23
Q

What is considered a responsible body in the context of common practice in clinical negligence?

A

De Freitas v O’Brien & Connolly (1995): 11 spinal surgeons out of 1,000 surgeons were a responsible body given their qualifications and experience.

24
Q

Define the Bolitho test in the context of clinical negligence.

A

Bolitho v City and Hackney Health Authority (1997): court has to be satisfied that the body of opinion relied upon can demonstrate that such opinion has a logical basis. The experts must have considered the comparative risks and benefits and reached a defensible conclusion.

25
Q

Describe the outcome of Crawford v Charing Cross Hospital (1953) in relation to the state of the art defence in clinical negligence.

A

Crawford v Charing Cross Hospital (1953): knowledge published 6 months before breach, claim failed. It would be both impractical and unrealistic to expect a professional to know every new development in their field at a given time.

26
Q

What must doctors do in relation to keeping up to date with new developments/procedures?

A

General Medical Council: Doctors must do what is reasonable to keep up to date with new developments by going on professional development courses.

Gascoine v Sheridan (1994): doctors must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals.

27
Q

What precedent did the case of Montgomery v Lanarkshire Health Board (2015) set in relation to a failure to advise of risks of procedures?

A

Medical professionals are under a duty 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 treatments.

A material risk is one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent.

28
Q

Describe the facts of Montgomery v Lanarkshire Health Board (2015).

A

C was of small build and diabetic. Evidence showed that diabetes lead to larger babies. During delivery, C’s baby got shoulder dystocia and the baby was starved of oxygen resulting in brain damage.

C argued that she should have been warned of the risk of shoulder dystocia as she would have asked for a caesarean section. The obstetrician had not warned as the risk was so small.

The D was found in breach of duty for failing to warn the C of the material risk of shoulder dystocia.

29
Q

Does the Bolam test apply when considering whether a medical professional is in breach of duty for a failure to advise in relation to risks?

A

Yes, as per McCulloch v Forth Valley Health Board (2023).

A doctor who has taken the view that a treatment is not a reasonable alternative for a patient will not be negligent in failing to inform the patient of the alternative if their view is supported by a responsible body of medical opinion.