Breach of duty - standard 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. determine if the defendant has fallen below that standard - breached the study

Question 2

What is the starting point for establishing the standard of care?

Answer 2

Defendant must behave as a reasonable man would in all the circumstances (Blyth v Birmingham Waterworks)

Question 3

What cases prove “Act not actor”?

Answer 3

• Nettleship v Weston
• Philips v William Whiteley
• Wells v Cooper

Question 4

What is the standard of care expected from a professional standard?

Answer 4

The standard is based on what the reasonable professional in that field would have done

• Bolam test
• A professional, like a doctor, must meet the standard of care expected of their post.

Question 5

What happens to the standard of care in the case of children?

Answer 5

• standard required will be that of the reasonable child of the defendant’s age
• Mullin v Richards

Question 6

Will a lower standard of care be applied to adults if they were inexperienced or doing the best in the circumstances?

Answer 6

lol no

• Nettleship v Weston
• act not actor

Question 7

Is there any way a junior doctor will not be in breach?

Answer 7

• inexperience doesnt impact the courts decision
• Bolam (uniform standard of care is adopted)
• act not actor
• if the Junior doctor was able to seek advice from a more senior/experienced colleague, may be able to escape liability (Wilsher v Essex AHA)

Question 8

Will a lower standard of care be applied to adults if they suffered an illness or disability?

Answer 8

• only if the incapacity amounted to a total loss of consciousness or control (Roberts v Ramsbottom)
• person should have stopped the second they realised that their driving had been affected

Question 9

What was the test set out in Bolam?

Answer 9

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 form of treatment; nor is he negligent merely because there is a body of opinion which would adopt a different technique.

Question 10

What constitutes a reasonably body of opinion?

Answer 10

• does not have to represent a majority, merely an acceptable body
• De Freitas had 11 out of 1000

Question 11

Do doctors have to advise their patients in relation to risks?

Answer 11

• OLD (not really right anymore): only if the actions conformed with a responsible body of medical opinion
  (Sidaway v Board of Governors of the Bethlem Royal Hospital)
• The doctor is under a duty to take reasonable care to ensure that the patient isaware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. (Montgomery v Lanarkshire Health Board)
• The test of materiality is whether, in the circumstances of the particular case,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.
• courts will consider the emotional state of the patient (Pearce v United Bristol Healthcare NHS Trust)

Question 12

What is the ‘state of the art’ defence in a professional context?

Answer 12

• It would be both impractical and unrealistic to expect a professional to know every new development in his field at any given moment in time. (Crawford v Charing Cross Hospital)
• General Medical Council (GMC) states that doctors must do what is reasonable to keep up to date with new developments
• they must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals (Gascoine v Sheridan).