Breach of Duty of Care

Question 1

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

Answer 1

1) Determine the standard of care to be expected of the defendant

2) Whether the defendant has fallen below this standard

Question 2

What is the starting point for standard of care?

Answer 2

Usual starting point: defendant must behave as a reasonable person would in all the circumstances.

This is an objective standard - not a question of what could reasonably be expected of this particular defendant.

Standard is set by act not actor.

Question 3

Can inexperience be a defence to an action of professional negligence?

Answer 3

No.

Question 4

What is the professional standard?

Answer 4

Test: the standard of the ordinary reasonable man exercising and professing to have that special skill.

Inexperience is not a defence.

Question 5

What is the standard of care for children?

Answer 5

Standard required will be that of the reasonable child of the defendant’s age carrying out that act.

Question 6

When can or will the standard of care be adjusted?

Answer 6

• standard of professional
• children
• may be adjusted in certain circumstances to take into account sudden illness/disability which the defendant was reasonably unaware of.

Question 7

What are the factors relevant to a breach?

Answer 7

• Likelihood of harm
• Magnitude of harm
• Practicality of precautions
• Benefit of D’s conduct
• Common Practice
• ‘State of the art’ defence
• Sport

Question 8

Likelihood of harm

Answer 8

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

Note: A reasonable person does not take precautions against every risk, only those reasonably likely to happen.

Defendant must tailor their conduct in light of the characteristics of people who they know might be affected by their actions.

Question 9

Magnitude of harm

Answer 9

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

Question 10

Practicality of precautions

Answer 10

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

Question 11

Benefit of the defendant’s conduct

Answer 11

Court’s will consider the value of the defendant’s behaviour to society - if defendant has taken a risk with the aim of preserving or protecting life, limb or property then this may be justified.

Social Action, Responsibility and Heroism Act 2015

Question 12

Compensation Act 2006 s1

Answer 12

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps 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

Question 13

Common practice

Answer 13

If defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant’s favour, and the defendant may escape liability.

Note: court can always rule the common practice is itself negligent. Generally less expertise/specialist knowledge involved, the less weight the court will give to common practice.

Question 14

State of the art defence

Answer 14

The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.

What a responsible body of medical opinion would know at the time of the operation and not at the time of the court hearing.

Doctors must do what is reasonable to keep up to date with new developments. Professional development courses, must follow changes in mainstream literature.

Question 15

Sport

Answer 15

Breach of duty if the reasonably participant (of the defendant’s level) would have known that there was a significant risk that what they did could result in serious injury.

Question 16

What is the standard of proof for a breach of duty of care?

Answer 16

Burden is on the claimant, to the standard of ‘on the balance of probabilities’.

Therefore, obligation is on the claimant to show it is more likely than not the defendant breached their duty.

May be helped by relying on a relevant criminal conviction.

Question 17

What is res ipsa loquitur?

Answer 17

‘The facts speak for themselves’ - used where the only plausible explanation for the claimant’s injuries is negligence by the defendant. If applies, then for the defendant to show that they were not negligent. Helps claimants who have difficulty proving exactly how an accident occurred.

Three conditions for the maxim to apply:

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; and
3. The cause of the accident is unknown to the claimant (ie claimant has no direct evidence of the defendant’s failure to take care).

Question 18

What are the three conditions for the maxim res ipsa loquitor?

Answer 18

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; and
3. The cause of the accident is unknown to the claimant (ie claimant has no direct evidence of the defendant’s failure to take care).

Question 19

What is the Bolam Test?

Answer 19

Starting point for whether there is professional negligence.

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.

Responsible body: does not have to rep majority of opinion only a respectable one.

BUT not always enough for practice to be commonplace, must also be reasonable, respectable, responsible. Must withstand logical analysis.

Question 20

When does the Bolam test not apply?

Answer 20

Does not apply when considering whether a medical professional is in breach of duty for failure to warn of risks of procedures.

The Bolam Test applies to the duty to take reasonable care to advise the patient of any reasonable alternative or variant treatments.

Question 21

What is the duty of professionals in relation to advising on risks?

Answer 21

Medical professionals are generally obliged to tell patients about 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, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance.

Unless, doctor takes view alternative treatment is not a viable alternative and is supported by a responsible body of medical opinion.

Excused in circumstances of necessity or if disclosure would be be seriously detrimental to the patient’s health.

Question 22

What are the types of losses in negligence?

Answer 22

1. Personal injury/property damage
2. Consequential economic loss
3. Pure economic loss
4. Psychiatric damage

Question 23

What is personal injury/property damage?

Answer 23

This is when the claimant’s person or property is damaged. For example, a broken arm or a damaged car. Such losses do not usually pose any problems at the duty of care stage.

Question 24

What is consequential economic loss?

Answer 24

Economic loss consequent on physical damage eg lost salary because of broken leg.

Question 25

what is pure economic loss?

Answer 25

Economic loss that arises where there has been no damage to the claimant’s property or injury to their person.

Question 26

What is psychiatric damage?

Answer 26

When the claimant suffers psychiatric damage.