Standard of Care Flashcards
Standard of Care
Once a duty of care has been established the second consideration for the court is
whether the actions of a defendant fall below the standard of care expected m the circumstances.
Negligence therefore can be defined as any conduct that falls below the
standard expected of the ordinary reasonable person
what factors do the law allow to be considered?
A person’s mental or physical capacity will be taken into consideration to determine whether in the circumstances, greater care should have been taken on their part.
Equally the law does not require knowledge that is beyond a person
what are the facts of Roe v Minister of Health?
In Roe v Minister of Health, the plaintiff underwent a surgical procedure in a hospital managed by the defendant. Before the surgery, an anesthetic was administered and at that time, it was common pratice to store such an anesthetic in a glass phials immersed in an phenol solution.
Unknown to the staff, the glass phials had a number of micro-cracks in them which were invisible to the eye nut which allowed the phenol to penetrate the solution. When used the phenol-contaminated anesthetic caused the plaintiff to suffer permanent paraplegia and she sued for personal injury.
At the time the incident occured there was no known risk of the leak, nor that the phenol would cause such a reaction if administered with the anesthetic. Thus since no reasonable anaesthetist would have stored or administered the anaesthic differently, it was inappropriate to hold the hopsital management liable for failing to take precautions.
what was held in the case of Counihan v. Bus Atha Cliath
Not negligent, he crashed due to a blackout caused by a condition he was unaware of. The standard he was held
to was that of a reasonable man unaware of his illness.
what was held in the case of Dunnage v. Roundall
The test can’t be altered unless it can be shown that the impairment eliminated any fault on his part. Here the
schizophrenic retained some willpower so negligent.
what are some relevant factors considered in assessing negligence?
(a) The degree of risk probability of harm
(b) gravity of harm
(c) Cost & probability of prevention
(d) social utility
(a) The degree of risk probability of harm
When considering this aspect of the standard of care, the court will consider the likelihood of harm occurring and where is a known risk the courts are very reluctant to allow a person avoid liability for an otherwise foreseeable event.
In Kelly v St. Laurence’s Hospital, Henchy J
summarised the position as:
“The essential question is whether the risk of injury or damage complained of was such that a reasonable person in the position of the defendant would have taken the precaution suggested by the plaintiff.”
what are the facts of Haley v London Electricity Board - The degree of risk probability of harm
In Haley v London Electricity Board, Mr. Haley, a blind man, was fell down a manhole which was left open during road works being carried out by the defendants.
The House of Lords held that the possibility of a blind person walking on that particular path was very likely
given its urban location and so the defendant should have foreseen the potential injury and taken precautions to avoid it. It was further noted by the court that prevention of the injury would have been easy to ensure and so liability was imposed for failing to take such simple precautions.
what are the facts of Hall v Kennedy - The degree of risk probability of harm
In Hall v Kennedy, the plaintiff was a patron of the defendant’s public house when he was
attacked by another patron. The Court held that the owners of all drinking establishments owe a duty to their patrons to have due regard for their safety while on the premises and according to Morris J this includes removing customers that may pose a risk of harm to other patrons, refusing to serve the person and staffing the premises with sufficient barmen or security staff to ensure the safety of their customers. it is worth noting that in this case, liability was not imposed because prior to the assault the patron had not given any indication of his violent temperament.
(b) gravity of harm
The courts acknowledge that while sometimes the risk of harm may be slight, this can be counter-balanced by the gravity of harm to a particularly vulnerable claimant.
what are the facts of fitzsimmons b An Bord Telecom & ESB - The gravity of harm
In Fitzsimmons v An Bord Telecom & ESB, the plaintiff’s husband tried to remove a fallen tele- phone cable which was creating a dangerous risk by being left on the ground.
In the course of moving the cable he was electrocuted and died. The court held that the defendants were liable
for his death as they had failed to repair the line and given the potential danger created by
damaged electricity cables the defendants owed a higher duty which was not established in this case.
(c) Cost & probability of prevention
point the law expects people to take precautions that are reasonable in guarding against harm to others. Having said that, where avoiding the injury would have required a significant and disproportionate effort, and the risk in question is of a minor variety, liability may not be imposed.
what are the facts of Sutherland v Supervalu - Cost & probability of prevention
In Sutherland v Supervalu, the plaintiff was a child who was injured when her hand became trapped in the conveyor belt at the defendant’s till. The court held that to impose liability would result in the defendants, and all other supermarkets, being required to continuously monitor all children who helped their parents loading items onto the conveyor which would be disproportionate, burdensome and unduly onerous requirement
(d) social utility
The fourth consideration for the courts is whether the defendant’s actions serve serve a socially use purpose an 1 so does that social utility justify the taking greater risks.
what are the facts of Mulcare v Southern Health Board? - social utility
In Mulcare v Southern Health Board, the plaintiff was employed by the defendant as a home carer and the house of the person she was looking after was in such a state of disrepair that she injured herself in the course of her duties. In dismissing the claim the court paid particular regard to the fact that it would have been inappropriate to require the defendant enforce standards upon the elderly people who availed of the service. Furthermore, the very purpose of acting as a home carer carried a great social benefit and to impose liability would jeopardise that function in society.
