Breach of Duty

Question 1

What two stages are there to establishing whether a breach of duty has occurred?

Answer 1

What is the standard of care expected? [Question of Law]

Has the defendant fallen below this standard of care? [Question of fact]

Question 2

What is the basic understanding of the standard of care?

Answer 2

From Blyth v Birmingham Waterworks: D must behave as a reasonable person would in all the circumstances.

Question 3

Is the basic understanding of the standard of care objective or subjective?

Answer 3

Theoretically objective, but has some subjective elements depending on what the defendant faced, and what a reasonable person might have done in the circumstances.

Question 4

What general rule can be applied re standard of care?

Answer 4

Act, not the actor

Question 5

What is the standard of a learner driver?

Answer 5

That of an ordinarily competent driver; no allowances as the act is driving

Question 6

What is the standard of a junior doctor?

Answer 6

No lower standard of care applies to those training in a profession - uniform standard of care of the reasonable doctor

Question 7

What is the rule on standard of care in professional sports?

Answer 7

A higher degree of care would be required of a first division footballer, than a local league player.

Question 8

What is the professional standard of care, from Bolam v Friern?

Answer 8

That of the ordinary reasonable man exercising and professing to have that special skill.

Question 9

What is the standard of care for children?

Answer 9

That of a reasonable child of the defendant’s age, carrying out the act.

Question 10

What is the standard of care re driving and impairment?

Answer 10

If you know your sharpness has been impaired, you should not drive; a reasonably competent driver would not continue driving a car once aware that judgement is affected.

Question 11

What are the seven factors which are relevant to whether a breach has occurred or not?

Answer 11

Likelihood of harm
Magnitude of harm
Practicality of precautions
Benefit of D’s conduct
Common practice
State of the art
Sport

Question 12

What is the principle on likelihood of harm?

Answer 12

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

Question 13

What is the principle on magnitude of harm?

Answer 13

The greater the injury that could be caused, the greater the prevention should have been e.g. Paris v Stepney - one eye and Watson v BBC - so serious

Question 14

What is the principle on practicality of precautions?

Answer 14

Must be a reasonable precautions e.g. whole shutdown of a factory not reasonable

Question 15

What is the principle on benefit of D’s conduct?

Answer 15

D taking a risk with the aim of preserving life, limb or property can be justified, but won’t always be - no blanket exemption for emergency services.

Question 16

How is the benefit of D’s conduct now enshrined in statute?

Answer 16

Via compensation Act 2006 S1; courts considering negligence will consider whether an order of negligence will prevent desirable activities.

Social Action, Responsibility and Heroism Act

Question 17

What is the principle on common practice?

Answer 17

Common practice is usually a defence in favour; but common practice can be ruled negligent.

The less expertise / specialist knowledge in a particular area, less weight court will give to this area.

Question 18

What is the principle on state of the art?

Answer 18

The state of knowledge is considered against the time of the alleged breach, not the court hearing.

Question 19

What is the principle for sport?

Answer 19

Lenient depending on the ‘demands of the game’

For sport, nothing short of ‘reckless disregard for the claimant’s safety’ would constitute a breach.

But, there would be a breach if a reasonable participant, of D’s level, would have known significant injury could have been caused.

Question 20

How does the court approach whether D has fallen below the standard of care?

Answer 20

A ‘balancing act’

Question 21

Where does the burden of proof lie for a breach?

Answer 21

On the claimant to prove that the D breached the duty, on the balance of probabilities.

Question 22

What can support a claimant looking to get evidence to prove their claim?

Answer 22

S11 Civil Evidence Act: Can take evidence from criminal trial.

Or; res ipsa loquitur

Question 23

What is res ipsa loquitur

Answer 23

The facts speak for themselves; essentially, no other common sense option.

Question 24

When does res ipsa loquitur apply?

Answer 24

The thing causing the damage was under the control of D

The accident would not normally happen without negligence

Cause of accident is unknown

Question 25

How do you judge if a professional has fallen below the professional standard of care?

Answer 25

Ask: have they acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?

Question 26

Are you negligent if there are professionals who disagree with you?

Answer 26

No - conflicting professional opinion will not be breach.

Question 27

What constitutes a responsible body of opinion?

Answer 27

De Freitas; does not have to be majority, just has to be acceptable. 11 / 1,000 surgeons.

Question 28

What is the principle of Bolitho?

Answer 28

Common practice alone is not enough to defend negligence - body of opinion must have a logical basis.

What is a logical basis? Comparative risks and benefits, reached a defensible conclusion.

Question 29

How do courts assess state of the art in a professional context?

Answer 29

A professional need not know every development in their field

But GMC guidance now says doctors must do what is reasonable to keep up to date

+ Gascoine; doctors must follow changes in mainstream literature, but no need re obscure journals.

Online info has raised expectations.

Question 30

When does the Bolam test not apply?

Answer 30

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

Question 31

What must medical professionals do re risks?

Answer 31

Make patient aware of any material risks + alternative / variant treatments

Question 32

What should medical professionals consider a ‘material risk’?

Answer 32

One which a reasonable person in the patient’s position would attach significance to, or a doctor may be aware this particular patient would attach significance to.

Question 33

When can medical professionals withhold information?

Answer 33

If seriously detrimental to a patient’s health, or via emergency.

Question 34

After McCulloch, where does the Bolam test now apply?

Answer 34

Duty to advise a patient of any reasonable alternative / variant treatments.

implications: a doctor who has taken the view that a treatment is not a reasonable alternative treatment is not negligent for failing to communicate this, if supporting by a responsible body of medical opinion.