2. Breach of Duty Flashcards
What is the standard of care?
The level of care expected from a person in a given situation.
What is the ‘reasonable person’ test?
A test to determine if a person met the standard of care expected of a reasonable person.
What is the professional standard of care?
The standard of care expected from a professional in their field.
What is the Bolam test?
A test to determine if a professional showed the same degree of skill as a reasonable professional in their field.
What is the duty of professionals in relation to new developments?
Professionals have a duty to keep up to date with new developments in their field.
What is breach in relation to professional standard of care?
Determining if a professional acted in accordance with a responsible body of professional opinion.
What is the test for medical cases?
Determining if a professional failed to advise on material risks and alternatives.
What are material risks?
Risks that a reasonable patient would likely attach significance to.
What is the general standard of care?
The standard of care expected from a reasonable person regardless of their experience.
What is the significance of possession of skill?
If a person undertakes a task that requires a specific skill they do not possess, it is likely to be considered negligent.
What is the standard of care for child defendants?
Child defendants must meet the standard reasonably expected of an ordinary child of the same age.
Is there a fixed age at which a child cannot be liable in negligence?
No, there is no fixed age at which a child cannot be liable in negligence.
How does the age of a child affect their ability to foresee harm to others?
The younger the child is, the less likely they are able to foresee harm to others.
Can a child under 18 be sued or sue without representation?
No, a child under 18 cannot be sued or sue without an adult representing them as a litigation friend.
What factors does the court consider when assessing breach of the standard of care?
The risk created by the defendant’s actions, the precautions the defendant should have taken, and the magnitude of the risk.
What are the four elements the court considers when establishing breach?
Likelihood of harm, seriousness of injury, utility of the defendant’s activity, and the burden of taking precautions.
How does the likelihood of harm affect breach?
Greater risk of harm increases the chance of the defendant being in breach.
How does the seriousness of injury affect breach?
More serious injuries require greater care from the defendant.
How does the utility of the defendant’s activity affect breach?
The court balances the risk against the ends to be achieved by the defendant’s activity.