Negligence 2

Question 1

what is the breach of duty test for medical negligence and what are the standards for it

Answer 1

• The Bolam Test
• (a) ‘the ordinary skilled [practitioner]’; (b) ‘a practice accepted as proper by a responsible body of medical [practitioners] skilled in that particular art’.

Question 2

what does the bolam test say about conflicting medical views and what is the case

Answer 2

• Once a body of professional opinion supporting D’s conduct is characterised as responsible, then judges ought not to choose between conflicting medical views –
• Ashcroft v Mersey Regional Health Authority

Question 3

what is the Wednesbury analogy?

Answer 3

• Bolam establishes a relaxed standard of reasonableness

Question 4

what does bolam apply to and what are the cases

Answer 4

• treatment, diagnosis, disclosure of information

- Lord Diplock, Sidaway v Bethlem Royal Hospital Governor.

Question 5

what did Lord Templeman say in sideway about therapeutic privilege

Answer 5

• sometimes, doctors may withhold information so as to secure the patient’s best interests

Question 6

what is the problem of overdetermination?

Answer 6

• an event is overdetermined if there exist more than one antecedent events, any of which would be a sufficient condition of the event occurring

Question 7

what are the three requirements that C must satisfy for The Pleading of Res Ipsa Loquitur (the Thing Speaks for Itself) and a case?

Answer 7

• the cause of the accident must be unknown
• D had control over the source of harm;
• harm would not normally occur in the absence of carelessness
• Scott v London and St Katherine Docks Co

Question 8

what did Gregg v Scott say about loss of chance

Answer 8

• negligent diagnosis results in reduced chance of successful treatment.
• cannot sue for the loss of a chance that is 50% or less.
• If this claim had been accepted, the number of claims that could be brought against doctors would be greatly increased

Question 9

what case discusses the medical duty to refer

Answer 9

• Wright v Cambridge Medical Group

Question 10

what case shows a Successful Claim for Reduction in Life Expectancy

Answer 10

• JD v Mather

Question 11

what case states that Doctors are under a duty to make patients aware of material risks

Answer 11

• Montgomery v Lanarkshire Health Board

Question 12

what does Montgomery v Lanarkshire Health Board say about material facts?

Answer 12

• The nature of a ‘material’ risk: (i) a reasonable person (in C’s position) would be likely to attach significance to it, or (ii) a doctor is or should reasonably be aware that their patient would be likely to attach significance to it

Question 13

what does Hinz v Berry state about negligence and psychiatric harm

Answer 13

• C can only claim for recognised psychiatric injury

- Damages are not awarded for grief or sorrow caused by a person’s death

Question 14

what did Victorian Railway v Coultas state about remoteness in psychiatric harm

Answer 14

• claimants could not recover for psychiatric injury since the relevant harm was too remote.
• occasioning a nervous or mental shock, cannot under such circumstances … be considered a consequence which would flow from negligence’.

Question 15

what was the control device in Huston v Borough of Fremansburg about Psychiatric Harm

Answer 15

C must be in the zone of physical risk (where reasonable fear or apprehension of danger to one’s own physical safety can arise)

Question 16

what was the conrtol device in Hambrook v Stokes about Psychiatric Harm

Answer 16

C apprehended the danger through her ‘own unaided senses’ (Bankes LJ).

Question 17

does harm to C need to be reasonably foreseeable for psychiartric harm and what case?

Answer 17

• harm to C needs to reasonably foreseeable

- King v Phillips

Question 18

what are the 3 considerations Lord Wilberforce stated in McLoughlin v O’Brian about ‘Immediate Aftermath’ for psychiatric harm

Answer 18

• the closer the tie, the more powerful the claim for compensation will be
• proximity in time and space
• means of communication (apprehension (shock) through one’s own unaided senses).

Question 19

what did alcock say about for psychiatric harm? (4)

Answer 19

• C must prove that a special relationship of love and affection exists
• C must be there for the immediate aftermath
• Television broadcasts: not the same thing as apprehension through one’s own, unaided senses.
• Liability may arise if a broadcaster breaches relevant guidelines and shows scenes of individual suffering.

Question 20

can rescuers get a claim for psychiatric harm + case?

Answer 20

• yes

- Chadwick v British Railways Board

Question 21

can there be a claim for psychiatric harm for damaged property + case

Answer 21

• yes

- Attia v British Gas

Question 22

does the Eggshell Skull Principle apply to Psychiatric Harm + case?

Answer 22

• yes

- Mount Isa Mines v Pusey

Question 23

what is primary and secondary victim and what cases?

Answer 23

• primary victim: ‘one directly involved in an accident’ (Markesinis & Deakin). reasonable foreseeability is not needed for them
• ‘secondary victim’ suffers psychiatric injury as a consequence of witnessing or being informed about an accident that involves another

Question 24

what case supports claims for searchers for psychiatric harm?-

Answer 24

• in Wagner v International Railway Co

Question 25

what happens for employees who suffer from occupational stress?

Answer 25

• Employees who suffer occupational stress will be categorised as primary victims.
• This will be the case even in the absence of physical danger

Question 26

what is stated about plural plaques + case

Answer 26

• the pleural plaques case was different since the psychiatric injury did not arise from an ‘event’ that had already happened.
• It was caused by ‘apprehension that the event may occur’.
• Johnston v NEI international