Breach of Duty Flashcards
What two stages are there to establishing whether a breach of duty has occurred?
What is the standard of care expected? [Question of Law]
Has the defendant fallen below this standard of care? [Question of fact]
What is the basic understanding of the standard of care?
From Blyth v Birmingham Waterworks: D must behave as a reasonable person would in all the circumstances.
Is the basic understanding of the standard of care objective or subjective?
Theoretically objective, but has some subjective elements depending on what the defendant faced, and what a reasonable person might have done in the circumstances.
What general rule can be applied re standard of care?
Act, not the actor
What is the standard of a learner driver?
That of an ordinarily competent driver; no allowances as the act is driving
What is the standard of a junior doctor?
No lower standard of care applies to those training in a profession - uniform standard of care of the reasonable doctor
What is the rule on standard of care in professional sports?
A higher degree of care would be required of a first division footballer, than a local league player.
What is the professional standard of care, from Bolam v Friern?
That of the ordinary reasonable man exercising and professing to have that special skill.
What is the standard of care for children?
That of a reasonable child of the defendant’s age, carrying out the act.
What is the standard of care re driving and impairment?
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.
What are the seven factors which are relevant to whether a breach has occurred or not?
Likelihood of harm
Magnitude of harm
Practicality of precautions
Benefit of D’s conduct
Common practice
State of the art
Sport
What is the principle on likelihood of harm?
The more likely someone is to get injured, the more likely there will be a breach
What is the principle on magnitude of harm?
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
What is the principle on practicality of precautions?
Must be a reasonable precautions e.g. whole shutdown of a factory not reasonable
What is the principle on benefit of D’s conduct?
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.
How is the benefit of D’s conduct now enshrined in statute?
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
What is the principle on common practice?
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.
What is the principle on state of the art?
The state of knowledge is considered against the time of the alleged breach, not the court hearing.
What is the principle for sport?
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.
How does the court approach whether D has fallen below the standard of care?
A ‘balancing act’
Where does the burden of proof lie for a breach?
On the claimant to prove that the D breached the duty, on the balance of probabilities.
What can support a claimant looking to get evidence to prove their claim?
S11 Civil Evidence Act: Can take evidence from criminal trial.
Or; res ipsa loquitur
What is res ipsa loquitur
The facts speak for themselves; essentially, no other common sense option.
When does res ipsa loquitur apply?
The thing causing the damage was under the control of D
The accident would not normally happen without negligence
Cause of accident is unknown
How do you judge if a professional has fallen below the professional standard of care?
Ask: have they acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?
Are you negligent if there are professionals who disagree with you?
No - conflicting professional opinion will not be breach.
What constitutes a responsible body of opinion?
De Freitas; does not have to be majority, just has to be acceptable. 11 / 1,000 surgeons.
What is the principle of Bolitho?
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.
How do courts assess state of the art in a professional context?
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.
When does the Bolam test not apply?
When considering whether a medical professional is in breach of duty for failure to warn of risks.
What must medical professionals do re risks?
Make patient aware of any material risks + alternative / variant treatments
What should medical professionals consider a ‘material risk’?
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.
When can medical professionals withhold information?
If seriously detrimental to a patient’s health, or via emergency.
After McCulloch, where does the Bolam test now apply?
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.
