Obligations 1A Sec B Flashcards

Question

Workplace stress requirement to be recognised.

Answer 1

must be a recognised psychiatric condition caused by the demands of the workplace. its the relationship with the job, not the details of the job. Rory Keen v Tayside Contracts 2003

Answer 2

Hatton v Sunderland 2002 Knowledge of a particular vulnerability occupations that are intrinsically stressful nature and extent of the work being done signs from the employee himself.

Answer 3

Hatton v Sunderland *Pursuer must prove causation *May be various possible causes *Employee “does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution”

Answer 4

an employer is entitled to assume that the standard pressures of the job can be withstood unless explicitly mentioned otherwise due to vulnerabilities. Employer is entitled to see their employees at face value, unless there is a good reason to assume the contrary. claimant must prove suffering from the breach of duty - causation.

Answer 5

Flood v UofG 2010 As soon as the employer becomes aware that the usual stress of the job is becoming too much for the employee, they are on notice, that there is the potential for injury, but until they are given something to raise this alarm, they are entitled to expect employees to discharge their duties and withstand occupational stress.

Answer 6

Wylie v Grosset [2011] CSOH 89 para 21 (Drugs trial) ($) (Sued under contract rather than delict) (Could not sue under delict as they would not have been able to establish a breach of the duty of care, but they tried to establish a breach of a promise made by medical professionals)

Answer 7

Henderson v Merrett Syndicates Ltd [1994] UKHL 5 p 15-17 (Professionals may be sued by third parties rather other than clients, and therefore rely on a DOC as there is no contract; also may sue under contact as the delictual claim is time-barred; and there is the potential for higher damages under the law of delict c/f contract) ($)

Answer 8

"Someone part of a collective organisation that sets standards and professional codes". ICL Tech Ltd & others v Johnston Oils ltd 2012)

Answer 9

1. that there is a usual and normal practice; 2. that the defender did not adopt that practice; and 3. that the course the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. Maynard v West Midlands regional Health Authority 1984

Answer 10

The court - Bolitho v City and Hackney Health Authority 1998 despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence in some cases it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”

Answer 11

Stevens v Yorkhill NHS Trust 2006 * Professional opinion has overlooked a clear precaution to avoid adverse outcome? * Professional opinion strikes balance between a conflict of resources and duty? * Professional opinion fails to sufficiently weight up the risks and benefit to patient? * Professional opinion contravenes public opinion and expectations?

Answer 12

Montgomery v Lanarkshire health board 2015 a doctor needs to take reasonable care to ensure that the consent of the patient is fully informed which does mean telling them about otherwise low risks. disagrees with Hunter v Hanley - The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care

Answer 13

Is your challenge contractual or delictual? NHS generally delict as there will be no contract. Two key questions: (1) Is the person a professional according to the law of delict? (2) What is the standard of care? Remember that you still need to establish causation and loss before you will succeed.

Answer 14

White v Jones 1995 the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably perceive) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor

Answer 15

YES Trevor Rush McCafferty Wright v Paton Farrell and Robert Paton 2006

Answer 16

NO/MAYBE, it is very difficult to prove causation and under Rondel v Woolsey, a barrister and solicitor ought to be able to carry out their duty fearlessly and independently.