Negligence - breach of duty Flashcards
How to tell if there has been a breach of duty of care
what is the standard of care? Has the standard been met?
What is the standard of care?
Reasonable person - objective
Not concerned with ability of particular D
Do developments in scientific knowledge affect the standard of care
judge standard by state of knowledge at time of D’s actions
standard of care expected from a learner driver
that of a skilled, careful and experienced driver
standard of care of a child
reasonable child of that age
standard of care when D has an illness
depends if D knew of illness and if D could control their behaviour
Standard of care during sports
higher standards for professionals
standard of care for skilled professionals
Bolam - ordinary man exercising and professing to have the skill
Standard of care for medical practitioners
Bolam - not negligent if acting in accordance with a responsible body of medical opinion
Bolithio - body of opinion must have a logical basis
Montgomery - D is negligent if undisclosed risk materialises and this was a risk that a doctor showing reasonable care would have disclosed. Give info that a reasonable patient in that situation would consider material
How to determine if the standard of care has been reached
balance cost of risk with cost of avoiding risk.
negligent if cost of risk is higher
not negligent if cost of avoiding risk is higher
e.g. importance of activity, cost and practicality of precautions, likelihood and seriousness of injury
Compensation Act 2006 s1
courts should have regard to the extent that safety requirements could impact on desirable activity
Burden and standard of proof to establish breach
Burden is on C to balance of probailities
What if D has already been convicted of a criminal offence in relation to same act
This is strong but not conclusive evidence - Criminal evidence act 1968 s11
Res Ipsa Loquitur (the thing speaks for itself)
when there is no explanation for cause of accident but the cause was under control of D and the type of accident does not normally happen in absense of negligence.
