Breach of the Duty of Care Flashcards
What is the standard of care and how is it relevant?
The standard of care is the standard of care that a defendant must meet in order to avoid liability for negligence.
What is the standard of care for ordinary persons?
The defendant must exercise the same degree of care as a reasonable, prudent man would.
The reasonable man is not overly cautious or overly confident and has the subjective knowledge that the individual defendant had at the time of the allegedly negligent act.
Assessed with reference to the act, not the actor. Allowances are not made for lack of experience, including junior doctors and learner drivers (though this may seem harsh).
What is the standard of care for children and persons with disabilities or illnesses?
Children must act as a reasonable child of the same age would.
Persons with disabilities, if they are aware, only escape liability if they completely lose control or consciousness. If they are not aware of the disability or illness, assessed with reference to the normal standard.
Did D fall below the standard of care? (Calculus of Risk)
- Foreseeability of Harm (e.g is this a super rare or strange injury to result from the conduct?)
- Magnitude of Harm (worse the injury, the more care is required).
- Cost and Practicality of precautions that could have been taken
- Whether D’s conduct has a benefit (e.g rescue or benefit to society generally)
- Whether it is common practice in the profession
- Whether the state of art or knowledge would cover the negligent act
- Sport - where reasonable participant would foresee risk of serious injury.
Burden of Proof
Burden of Proof on C to prove D fell below standard of care
However, where res ipsa loquitur applies, burden shifts to D to prove that they met standard of care:
- C has no direct evidence of D’s failure to take care
- Injury would not normally happen without negligence
- thing or person that/who causes harm is controlled by D.
Standard of Care for Medical Professionals
Generally (Bolam): must act in accordance with a responsible body of medical opinion (this does not need to be a majority), must merely show that there is some level of agreement. Court should consider if the common practice itself may be negligent + doctors must keep abreast of new information and practice.
When advising on risk of treatment (Montgomery): must advise patient of risks that reasonable patient would think significant or which doctor is aware that particular patient would see as significant and advise of available alternative treatments to allow patient to have informed consent.
EXCEPT where medical pro can be reasonably confident that informing the patient would be seriously detrimental to the patient’s health.
