Chapter 39- Breach of duty

Question 1

What is the breach of duty of care

Answer 1

• This essentially means the defendant has fallen below the standard behaviour expected of someone undertaking the activity concerned

Question 2

When deciding the standard of care, the judge will take into account a number of factors

Answer 2

• Foreseeability of risk
• Magnitude of the risk
• Extent of the possible harm
• Social usefulness of the activity that led to the harm
• Practical precautions to minimise the risk

Question 3

FORESEEABILITY OF THE RISK:

Answer 3

• The risk of harm has to be within the defendants reasonable contemplation.
• As soon as the defendant foresees a risk, this would be a breach of duty

Question 4

MAGNITUDE OF THE RISK:

Answer 4

• If there is a duty of care, then the person must guard against the risk of harm being done.
• The defendant should take into account any factors that could increase the risk such as a claimants disability

Question 5

EXTENT OF POSSIBLE HARM:

Answer 5

• Also refers to the ‘thin-skull rule’
• The defendant must take into account the claimants background such as illness or religious beliefs

Question 6

SOCIAL USEFULNESS OF THE ACTICITY

Answer 6

• The defendant may not be found liable if it is possible that the risk was justified

Question 7

Describe the standard of care for children

Answer 7

• The standard of care depends on the age and experience of the child
• Its not expected that a child has the same precautions of risk as of an adult

Question 8

Describe the standard of care for Medical experts

Answer 8

• Medical experts do not have to conform to the usual rules on breach of duty in negligence.
• In medical negligence, an issue of how far a doctor has a duty to warn patients of a risk may arise

Question 9

What does the Bolam Test state

Answer 9

It states that a medical expert is not negligent if their actions are in accordance with a practice accepted by other medical experts even if others would’ve performed differently.
- This means that even if the smallest number of professionals agree, that will be enough to show whether or not there is liability

Question 10

When is the Bolam test used in relation to a doctors role

Answer 10

• Consent to treatment
• Examination of the patient and diagnosis
• Choice of treatment given to the patient
• The doctors level of expertise

Question 11

CONSENT:

Answer 11

• The court has to consider how much information a doctor must give to the patient

Question 12

EXAMINATION:

Answer 12

• The Bolam test extends to the negligent examination of a patient and careless diagnosis

Question 13

CHOICE OF TREATMENT:

Answer 13

• The courts believe this is a clinical decision, especially in emergency situations

Question 14

DOCTORS LEVEL OF EXPERTISE

Answer 14

• It’s suggested that Junior doctors should have a lower standard of care than those who are qualified.
• However the Judiciary believes that the standard of care applied to Junior doctors is the standard that is appropriate to a doctor exercising and professing to have the skill in question