Negligence: Breach

Question 1

What is the general standard of care?

Answer 1

D must take as much care as would be taken by a reasonable person

Objective: no account for whether D did their best / attributes / what they foresaw

Question 1

2-stage test the court apply to determine whether D is in breach of their duty of care?

Answer 1

1. Standard of care D ought to have exercised (Question of Law)
2. Whether D’s conduct fell below the required standard of care (Question of Fact)

Question 2

Will D be in breach if they are unexpectedly impaired?

Answer 2

No breach if they meet standard of reasonable person unaware of condition

Question 3

Standard of care for a skilled defendant

Answer 3

Degree of skill or competenece to be expected from a person with D’s special skill

Question 4

Will D have fallen below the standard of care if their actions are supported by a body of professional opinion / followed trade practice?

Answer 4

No but the court have the final say and may find the accepted practice negligent

Question 5

What is the standard of care for an underskilled defendent (e.g. DIY)?

Answer 5

D must meet the minimum standard required by the task
(If D does not possess special skill the task requires, likely negligent)

Question 6

What is the standard of care for a child?

Answer 6

An ordinary child of the same age

Question 7

What will the court weigh up when determining whether D has fallen below a reasonable standard of care?

Answer 7

1. Risk created by D’s activities; and
2. Precautions D ought to reasonably have taken in response to that risk

Question 8

What factors will the court take into consideration when determining whether D has fallen below a reasonable standard of care?

Answer 8

1. Magnitude (liklihood and severity)
2. Cost and practicality of precautions (lack of resources not a defence)
3. Public interest
4. Common practice
5. Standard of knoweldge at time of incident (if risk not known, not liable)

Question 9

If the risk was not known at the time of the incident will D have fallen below the standard of care?

Answer 9

No

Question 10

Burden of proof for showing D fell below standard of care?

Answer 10

GR: C must prove on balance of probabilites (witnesses)
EXCEPTIONS:
* Res Ipsa Loquitur
* Civil Evidence Act

Question 11

When will the court infer negligence without evidence?

Red Ipsa Loquitur

Answer 11

1. The thing causing damage is under D’s control or someone for whom D is responsible
2. The accident would not normally happen without negligence; and
3. The cause of the accident is unknown to C (no witnesses)

Question 12

How can D rebut an inference of negligence (res ipsa loquitur)

Answer 12

Show:
1. How the accident really happened and this was not due to their negligence; or
2. They used reasonable care at all times

Question 13

When can C rely on a criminal conviction to prove D fell below the standard of care?

Answer 13

1. offence involves careless conduct; and
2. relates to same act

Question 14

If D is inexperienced and refers a matter to a more senior person are they likely to have fallen below the standard of care?

Answer 14

No (likely not liable)

Question 15

When do medical professionals have a duty to inform patients of material risks and alternative treatments?

Answer 15

Risk is significant for general person or for the patient themselves
* irrelevant if percentage chance of injury is minimal
* Bolam test irrelevant to advising on material risk (i.e. recommendation of responsible body of opinion)
* Bolam test relevant as to whether advise of alternative treatments

Question 16

2 exceptions

When are doctors not required to advise patients of material risks?

Answer 16

1. Believe disclosure would be detrimental to patient’s health
2. Patient is unconcious and requires urgent treatment