Breach of Duty

Question 1

What is negligence

Answer 1

Omission to do something which is a reasonable man would do or something which a reasonable man would not do

Question 2

Glasgow Corporation v Muir

Answer 2

Defendant was the owner of a tea room. Customer walked through the room to get hot water and accidently dropped it on children. Was an accident but claim brought against the owner for not clearing the room before the hot water was brought through. Court disagreed that the defendant had acted negligently. Reasonable man is considered to be free from over-apprehension and from over confidence.

Question 3

Nettleship v Weston

Answer 3

Learner driver crashes and instructor is badly injured. Driver owes a duty of care to passengers. All drivers must drive in a good manner as a driver of skill, experience and care who iis in sound mind and limb, who make no errors of judgement

Question 4

The hand formula

Answer 4

The degree of care demanded of a person by an occasion is the resultant of three factors.
Likelihood that his conduct will injure others, taken with seriousness of the injury if it happens and against the interest which he must sacrificed to avoid the risk.

Question 5

Foreseeability of Harms

Answer 5

Roe v Minister of Health

• Claimant became paralysed - was injected with contaminated anaesthetic
• Had to keep anaesthetic in glass bottle which were then placed in a chemical.
• Glass bottle had little cracks in it.
• Not foreseeable, Harm had to be reasonably foreseeable.

Question 6

Likelihood of harm Bolton v Stone

Answer 6

Bolton v Stone

• Claimant was hit by a cricket ball
• Was foreseeable because it happened before.
• Claimant argued owners should have taken more care
• Court disagreed - an ordinarily careful man does not take precautions against every foreseeable risks, he takes precautions against risks which are reasonable likely to happen

Question 7

Likelihood of harm Haley v London electricity board

Answer 7

Defendant dug a trench in foot path - warned pedestrians by putting a long hammer on ground
Blind person did not notice, fell in the ground and injured himself.
Need to take precautions against those more vulnerable as well.

Question 8

Seriousness of harm

Answer 8

Paris v Stepney
Claimant was working in a garage, metal chip flew off and blinded him in his eye
Claimant now completely blind. His employer was negligent in not giving him safety googles
Defendant did not think this was necessary because consequences was that serious for other employees
Court disagreed - reasonable person takes more care if there’s risk serious harm.

Question 9

Cost and Practicality of precautions - Latimer v AEC

Answer 9

Latimer v AEC
- Defendant owned factory, after rainstorm, floor became flooded
-Floor become slippery - used sawdust to prevent workers from slipping
-Owner ran out of sawdust and claimant fell on part of the floor without sawdust.
-

Question 10

Cost and practicality of precautions - The wagon mound

Updated for clarity

Answer 10

Where the cost of avoiding damage is small the court will likely hold someone to be liable for not avoiding the damage.

The wagon mound case

• Oil Spilled from harbour into water
• Although the likely hood of the oil catching on fire was extremely low he was still negligent because to avoid this he simply had to turn off a tap. Cost of precautions was very small. So defendant was liable.

Question 11

Precautions

Answer 11

Smith v Littlewoods organisation
No duty of care
If there had been a duty defendants resources would need to be looked at.
If the defendant was on substantial means it may have been expected that he employed a security guard.

Question 12

Watt v Hertfordshire Count council

Answer 12

Firefighter claimant sued his employer when a large piece of equipment fell onto him after he was instructed to not secure it to the truck.
Court of appeal concluded that the object which the defendant was trying o achieve was a relevant factor when determining the standard of care and not just the cost of taking precautions against harm.

Question 13

S1 Compensation act 2006

Answer 13

A court when considering a claim in negligence may have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken.
or discourage persons from undertaking functions in connection with a desirable activity.

Question 14

Social Action, Responsibility and Heroism act 2015

Answer 14

Social: Court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.
Responsibility: whether the person in carrying out the activity in which the breach of duty occurred demonstrated a responsible approach ton protecting others safety.
Heroism: Whether the alleged negligence or breach of statutory duty occurred when the person as acting heroically by intervening in an emergency to assist an individual in danger.

Question 15

Standard of care for children

Answer 15

Mullin v Richards
Two school girls, fighting with rulers, ruler snapped and she became blind.
Objective test - reasonable 15 year old wouldn’t appreciate the risk. Children do not have the same capacity as adults to respond to and asses risk

Question 16

Palmer v Cornwall

Answer 16

Children were playing outside with only 1 teacher supervising 300 students. One student throws a rock at a seagull, it misses and hits claimant in the eye.
School wasn’t acting reasonably in that situation - found liable as they failed to take reasonable care.

Question 17

Defendant with mental disorder. Principle

Answer 17

Dannage v Randall
Claimant was injured when trying to prevent his uncle setting fire to himself. Claim brought by nephew to his uncles estate.
The standard of care will not be adjusted to take account of lack of capacity. Having a mental illness will not excuse a person from liability in negligence unless the illness entirely eliminates fault or responsibility.

Question 18

The basic professional standard

Answer 18

Bolam v Friern Hospital Management
When a situation involves skill or competence, the test is whether there has been negligence or not is not the rest or an ordinary person but a test of someone with a reasonable skill.

Question 19

The basic professional standard: inexperienced professionals

Answer 19

Wilsher v Essex Area Health Authority
A junior doctor doing a task that is typically required by more senior on.
If they do this task, they are held to the standard of that task. In this the case the standard of the more experienced doctor.

Question 20

Amateurs carrying out a professional activity

Answer 20

Well v Cooper
- Defendant fixed a door but door handle fell off and injured claimant
Claimant argued defendant failed to take reasonable care
-Carpenter was held to the standard of a regular DIY enthusiast not a professional

Question 21

The professional standard: conflicting bodies of opinion

Answer 21

Bolam v Frien Hospital management committee
- Claimant was given electro compulsive theory without a relaxing drug.
- When the current passed through him he broke his hip
- Some doctors agreed with the practice to not give him a relaxing drug some disagreed
Court - A doctor is not negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men.

Question 22

Application of the Bolam test

Answer 22

Maynard v Midlands Health Authority
-Claimant underwent biopsy on their throat which led to damage to vocal cords
-Claimant said defendant was negligent to perform the biopsy
-There were other doctors who disagreed with the defendants practice
Judge agreed with claimant. House of Lords - Judge is not allowed to prefer claimants opinion over defendants opinion as long as their is a agreeing body.

Question 23

Limits of Bolam: the Bolitho principle

Answer 23

Bolitho v City and Hackney Health Authority (1998)
- Claimant 2 year old boy in hospital, breathing difficulties. Doctor was called twice but did not respond.
-She argued that the only possible alternative was putting a tube down his neck which she wouldn’t have done anyway.
- She had a body of opinion supporting her. 3/8 - Following Bolam, means there is no negligence
House of lords disagreed - court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnostics because there’s a body supporting him.

Question 24

Logical Basis

Answer 24

In cases involving the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, Will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter’

Question 25

Limitation of the Bolitho principle

Answer 25

Seldom will a judge reach the conclusion that views genuinely held by a competent medical export are unreasonable.
Judges do not have the medical knowledge to know was the best

Question 26

Application of Bolitho

Where the court still finds doctors negligent despite having a reasonable body of opinion in support of them.

Answer 26

Lowe v Havering Hospitals

• Failure to take a clear and risk free precaution. - 8 week gap between
• If a precaution is easy and risk free the doctor should take it and is negligent if they do not.

Nationwide Organ Retention Group Litigation
-Pathologist in a number of hospitals failed to inform the relatives that, at a post mortem exam of their children that their organs could be used for scientific study.
Courts - Ethically, not reasonably responsible.

Hunt v NHS Litigation agency
Expert witness said a forceps delivery would cause untold damage to maternal population but also said it could be carried out in this case without harm.
Fails Bolam and Bolitho due to not having logical basis

Question 27

Informed consent. First/Original Legal View

Answer 27

Sidaway v Bethlem Royal Hospital (1985)

• Women needed an operation her back.
• Issue: Should the doctor have informed the patient that there was a 1-2% risk of causing her permanent spinal damage.
• Held: Voluntarily offering risks even though its been described as remote could lead to risk assuming undue significance in the patients calculations.

Question 28

Informed Consent: The end of medical paternalism.

Answer 28

Montgomery v Lanarkshire Health Board
- 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 of variant treatments.

Question 29

Informed Consent: What is material risk

Answer 29

A risk is material if, a reasonable person in the patient’s position would be likely to attach significance to the risk or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
Duty subject to therapeutic privilege - permits a doctor to withhold information in relation to a risk from a patient if she considers that disclosure would be seriously detrimental to the patient’s health. (Very narrow principle, unlikely that a lot of people will suffer damage just by being told of risks)