Chapter 39- Breach of duty Flashcards
What is the breach of duty of care
- This essentially means the defendant has fallen below the standard behaviour expected of someone undertaking the activity concerned
When deciding the standard of care, the judge will take into account a number of factors
- 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
FORESEEABILITY OF THE RISK:
- 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
MAGNITUDE OF THE RISK:
- 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
EXTENT OF POSSIBLE HARM:
- Also refers to the ‘thin-skull rule’
- The defendant must take into account the claimants background such as illness or religious beliefs
SOCIAL USEFULNESS OF THE ACTICITY
- The defendant may not be found liable if it is possible that the risk was justified
Describe the standard of care for children
- 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
- The strong policy reason for setting a high threshold for children is the social benefit. Where there is rough playing, there is a social benefit of allowing them tohave fun without the worry of being sued
Describe the standard of care for Medical experts
- 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.
- Medical professionals use the bolam test instead of the reasonable man test. So even if a few medical experts agree with the doctor, then they cant be held liable.
What does the Bolam Test state
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
When is the Bolam test used in relation to a doctors role
- Consent to treatment
- Examination of the patient and diagnosis
- Choice of treatment given to the patient
- The doctors level of expertise
CONSENT:
- The court has to consider how much information a doctor must give to the patient
EXAMINATION:
- The Bolam test extends to the negligent examination of a patient and careless diagnosis
CHOICE OF TREATMENT:
- The courts believe this is a clinical decision, especially in emergency situations
DOCTORS LEVEL OF EXPERTISE
- 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
Evaluate breach of duty
- The reasonableness test assumes a uniform standard, which does not always account for real-life complexities
- In cases involving children, the courts have adjusted the test (Mullin v Richards (1998)), but this does not apply in other contexts.
- The objective nature of the test ensures consistency but may fail to account for individual circumstances.
- Inexperience is not a defense—all individuals are held to the same standard, which can be harsh on defendants new to a profession or activity.
- some claimants may struggle to prove breach, while some defendants may be unfairly penalized for actions they could not reasonably avoid.
