lecture 3 - breach of DoC

Question 1

what are the two questions to ask for breach of DoC

Answer 1

question of law: how ought the defendant to have behaved in those circumstances - i.e. what is the standard of care? (statute and common law)
question of fact: did the defendants behaviour fall below the desired standard - i.e. was there a breach?

burden: general rule is that claimant must prove breach
* general standard is objectice: reasonable person (RP)
* purpose is not to analyse the defendant as an individual
* it is to determine whether a reasonable person would have behaved in the same manner

Question 2

what is two-stage test to determine whether doctor has taken reasonable care to ensure patient is informed of any material risk (Duce v Worcestershire acute hospital NHS Trust [2018])

Answer 2

1. ‘what risks associated with an operation were or whould have been known to the medical professioanl in question. this is a matter falling within the expertise of the medical professioanl’
2. ‘whether the patient should have been told about such risks by refrence to whether they were material. that is a a matter for the court to determine. this issue is therefore not subject to the Bolam tes…’

Question 3

breach of DoC- question of law

problem: how do we decide what a RP would have done in that situation?

Answer 3

answer: foreseeability
economic approach
- foreseeability is about balancing two different factors
- not officially used by courts but it emerges from judgements
- 1. likelihood of injury (cost of running risk)
- what matters is what outcome is reaosnably foreseeable (not remote outcome)

Question 4

Breach of DoC- Question of fact

Answer 4

falling below the standard
↳Burden of proof on claimant
↳standard proof is balance of probabilities i.e. on the evidence, event was more likely to occur
↳easier if defendant already convicted of criminal offence (civil evidence act 1998, s1)
↳Res ipsa loquitur (the thing speaks for itself)

↳when balance of probabilities makes it particularly difficult (if not impossible) for claimant to prove breach, court will give them benefit of the doubt by interferring negligence from what is known (absent contary proof)

Question 5

what are the three elements of Res ipsa loquitur

Answer 5

1. the accident must be of the kind which does not normally happen in the absence of negligence
2. cause of accident must have been under defendants control
3. no explanation of the cause of the accident