Negligence: Breach of duty Flashcards
Bolam and Bolith test (introduced in medical negligence)
The Bolam Test and the Bolitho Test make up the twin pillars of all assessments of medical negligence. They state that a doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical.
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Res ipsa loquitur (what does it mean)
The thing speaks for itself
A man owns a house near to the boundary of his local cricket club. His garden boundary is only 30 metres (100 feet) away from the cricket ground, and his house is only 18 metres (60 feet) further away. Cricket balls have been hit onto his property 12 times in the last 12 months causing minor damage to his house.
The cricket club has a four-metre (13 feet) fence around the ground but have refused to consider building a higher fence to prevent cricket balls from leaving the ground. The club have stated that they do not have the money to fund the building of a newer fence. The club have also stated that the man should appreciate that the playing of sport is a ‘good thing’ and that he should simply put up with the risk of his house being hit by cricket balls ‘every now and then’.
A-Which of the following statements best describes whether a court would decide that the cricket club have breached their duty of care in negligence?
B-Yes, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the cost of building a higher fence was reasonable in the circumstances.
C-Yes, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the public interest in the playing of sport is not a relevant consideration.
D-No, because, the cricket club could reasonably foresee that the damage to the man’s house was likely but the cricket club did not have the resources to prevent the risk.
E-No, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the court are bound by the fact that it is the common practice of cricket clubs to have fences that are not higher than four metres.
Option B is correct – the court would consider the how likely the risk created by the club’s activities was and what reasonable precautions should be taken to eliminate the risk.
Option A is wrong because it fails to appreciate what precautions the club ought to reasonably have taken in response to a foreseeable risk.
Option C is wrong as the public interest in the activities undertaken by the club is a relevant consideration.
Option D is wrong as, if the court were to decide that it was reasonable to build a higher fence, the lack of resources of the club are not generally a relevant consideration.
Option E is wrong as, while the court do consider common practice, it is not conclusive and the court can ignore it if the practice was considered to be negligent.
A mother’s first labour was complicated by shoulder dystocia (baby’s shoulder becoming stuck in the mother’s pelvis).
Upon getting pregnant for the second time she was not advised as to the 5-10% risk of this happening again or that she could avoid the risk by opting for a caesarean section operation. Her treating clinician felt that the risk was too small to merit a warning and that her colleagues would agree.
Had the mother been warned she would have had further births by way of caesarean.
The mother’s second labour was complicated by shoulder dystocia, the baby suffered catastrophic brain injury, and mother suffered severe vaginal injury.
Which option best identifies whether and on what basis a claim may be brought?
A- A claim may not be brought by either mother or child, as the risk was one which a reasonable and responsible body of medical practitioners would not have warned of, therefore the clinician has not breached their duty.
B- A claim may not be brought by the mother as she had a responsibility to ensure that she asked about the risks and alternatives available to her. Her child may have a claim against her for failure to do so.
C- A claim may be brought by both mother and child as the clinician should have taken reasonable care to ensure that the mother was aware of any material risk involved in recommended treatment and any reasonable alternative treatments, failure in this instance is a breach of duty.
D- A claim may be brought by the mother as she is a primary victim of negligence, had she been appropriately warned she would not have gone ahead with a vaginal delivery. The child had not been born at the time of the negligence and as such has no standing to bring a claim.
E- A claim may be brought by both mother and child, a 5-10% risk is one that the court is likely to find significant, the opinion of the treating clinician and the mother are secondary to that of the court and failure to warn of this risk represents a breach of duty of care.
Option C is correct because the mother and her baby both have a claim in the tort of negligence against the Hospital Trust. The clinician has a duty to advise of alternative treatments and any material risk of harm arising from the recommended treatment. A risk is material if the reasonable person would consider it so. It is the mother’s evidence that she would have opted for a managed caesarean section delivery, thus avoiding the harm to both herself and her baby, Montgomery v. Lanarkshire Health Board [2015] UKSC 11).
Option A is wrong because this is based on the law as set out in Sidaway v. Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] AC 871, this has now been superseded.
Option B is wrong because the mother of the child is under no obligation to scrutinise the treatment options recommended by a clinician, she is entitled to assume that she will be appraised of any material risks, (that is a risk to which a reasonable person would be likely to attach significance) and any reasonable alternative variant treatment (Montgomery v. Lanarkshire Health Board [2015] UKSC 11).
Option D is wrong because the mother would have a claim as above in option C, and the baby would have a claim as above in option C, by virtue of S.1(1)(2a) Congenital Disabilities (Civil Liability) Act 1976.
Option E is wrong because the court’s view of the significance of the risk is immaterial, the risks of the procedure are informed by medical evidence and the materiality of those risks are determined according to the significance attached to the risk by the reasonable person (Montgomery v. Lanarkshire Health Board [2015] UKSC 11).
A woman learning to drive turned a corner without sufficiently checking each direction. Her car hits a cyclist and injures him.
Which one of the following statements is the best explanation of the woman’s breach of duty?
A- The woman is in breach of her duty of care to the cyclist because she turned the corner without sufficiently looking.
B- The woman is in breach of her duty of care to the cyclist because she caused him to suffer harm.
C- The woman is in breach of her duty of care to the cyclist because she fell below a reasonable standard of care.
D- The woman is in breach of her duty of care to the cyclist because by turning the corner without sufficiently looking she failed to reach the standard of care expected of a reasonable competent qualified driver
E- The woman is in breach of her duty of care to the cyclist because by turning the corner without sufficiently looking she failed to reach the standard of care expected of a reasonable learner driver.
Option D is correct as it is the best explanation. The woman was in breach of her duty of care to the cyclist because by turning the corner without sufficiently looking she failed to reach the standard of care expected of a reasonable driver. This explanation is the best because it explains the legal principle (the standard of care is that of the reasonable driver). It then applies the legal principle to the facts (the woman fell below a reasonable standard of care because she did not look sufficiently when turning the corner).
Options A and C are correct statements, but are incomplete on their own- so are not the best answers.
Option B is wrong because it is not correct to say that she was in breach of duty just because she caused harm.
Option E is wrong because the woman will be judged against the standard of a reasonable driver, namely a competent qualified driver (not a learner driver – Nettleship v Weston [1971] 3 All ER 581).
A defendant is being sued for damages arising out of a road traffic incident. The allegation is that the defendant failed to wait at a ‘Give way’ sign and pulled out into the path of the claimant at a road junction. The claimant was riding a bicycle and suffered a broken collar bone as a result of falling off their bike while, the claimant alleges, swerving to avoid the defendant’s car. The defendant denies the allegations and believes that the claimant fell off their bike because they were texting on a mobile phone.
The police attended the incident and the defendant subsequently received a fixed penalty fine for driving a vehicle without road tax. The claimant’s solicitor has reported that they have two independent witnesses who will support the claimant’s version of events. The defendant’s solicitor has not been able to locate any witnesses to support the claimant’s version of events.
Which of the following statements best explains why it is likely that the defendant would be found to have breached their duty of care to the claimant?
A- Because the claimant will be able to rely upon the criminal conviction.
B- Because the defendant will not be able to prove on the balance of probabilities that they did not fall below the standard of the reasonable driver.
C- Because the claimant will be able to rely upon the maxim res ipsa loquitur as the defendant was in control of the car and such incidents do not normally happen without a defendant’s negligence.
D- Because, on the balance of probabilities, the court is likely to decide that the claimant’s evidence has proven that the defendant fell below the standard of the reasonable driver.
E- Because the claimant will be able to rely upon the maxim res ipsa loquitur as the defendant was in control of the car, such incidents do not normally happen without a defendant’s negligence and the cause of the accident is not known to the claimant.
Option D is correct as it recognises that the burden of proof is on the claimant to prove breach of duty and that the issue will be decided on the basis of the available evidence.
Option A is wrong as, while a relevant criminal conviction can be relied upon to prove breach of duty (eg dangerous driving), the defendant’s conviction for failing to purchase road tax is not relevant as it does not involve careless driving as an element of the offence.
Option B is wrong because the burden of proof is on the claimant to prove their case. The burden of proof only switches to the defendant if they raise any defences, eg contributory negligence.
Option C is wrong because it does not set out all three conditions that are required to be satisfied before the claimant can rely on the maxim res ipsa loquitur.
Option E is wrong as, while it sets out the necessary requirements of res ipsa loquitur, they are not satisfied on the facts of the question. Such incidents do happen without any defendants being negligent and the cause of the accident is known to the claimant as they have evidence from independent witnesses of the defendant’s failure to comply with the ‘Give way’ sign
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