Breach of the Duty of Care Flashcards
Scope of DOC/Relevance to Breach Recall - Montgomery v Lanarkshire
Scope of the Doctor’s duty to warn.
Whether in the circumstances, a “reasonable person in the patients 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”.
What are the four setting the standard of care?
Reasonableness is the key
“reasonable care”
“ordinary skills”
Usual an objective standard
What are the Specialism test of Bolam?
Bolam - person practising a particular skill/art/experience is required to show the ordinary skill of an ordinary competent man exercising that particular art
Darnly v Croydon - Hospital Receptionist?
Standard: that of the averagely competent and well-informed person performing the function of a receptionist at a department providing medical care
Does inexperience have an impact on DOC?
Nettleship v Weston - Lord Denning : “the learner driver may be doing his best, but his incompetent best is not enough. He must drive in as good a manner as a driver of skill, experience and care”.
Applies also to professionals - eg Wilsher v Essex
What did the case of EB v Princess Alexandra Hospital 2017 show/
Personal attributes of a def. are generally disregarded (except where they cannot be ignored e.g. age)
a doctor must exercise the skill and care of a reasonably competent member of the profession.
If a doctor does not have the requisite degree of skill for the role in which they are acting, the hospital authorities will be liable for putting the doctor in a position that was too advanced for their abilities.
Is there a reduction of Duty of Care
· Mullin v Richard
· Orchard v Lee - Waller LJ:
“thirteen year old boys will be thirteen year old boys who play tag. They will run backwards and they will taunt each other. If that is what they are doing and they are not breaking any rules they should not be liable in negligence.
What is the imapct of Dangerous Sports/Activities ?
Wooldridge v summer
· “reckless disregard for safety…”
Lord Diplock: “a participant in a … competition gets into the circumstances in which he has very little time to think… if in the course of this… a participant by mistake takes a wrong measure, he is not to be held guilty of negligence”
· Blake v Galloway
In the context of ‘horseplay’ there is a breach of the duty of care only where the defendant’s conduct amounts to recklessness or a very high degree of carelessness
How do we assess Breach?
- The starting point – the initial test (Blyth v Birmingham)
- Foreseeability of harm
- Checking for ‘inevitable accidents’ (if relevant)
- Precautionary steps that could have been taken
Ask: Should these steps have been taken? (this is the crux) – the ‘quadrant of factors’
What is the Starting point case - for the basic test?
Blyth v Birmingham Waterworks
How does the foreseeability of harm:?
· Must be a real risk and not just a mere possibility.
· Wagon Mould No.2 - Breach of duty why ??
· The likelihood of harm was low but the seriousness was high, as well it would of taken no cost to fix it.
· Lord Reid - “if it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellants are liable in damages”.
· —à means therefore that harm is reasonably foreseeable if it isn’t thought to be physically impossible …
the possibility of its happening must not have been regarded as so fantastic or farfetched
What is the quadrant of breach factors?
- What was the probability of the injury occurring?
What was the likely gravity of the injury were it to occur?
The cost to implement precautionary steps?
The social economic utility of the defendant’s activity
