Breach of Duty

Question 1

Standard of care (Test - Common Practice)

Answer 1

The ‘reasonable person test’
The objective nature of the test
Act, not the actor

Question 2

Standard of care (Test - Professional Standard)

Answer 2

d

Question 3

Case -

Answer 3

Professional Standard

Question 4

Factors relevant to breach

Answer 4

Likelihood of harm *
Magnitude of harm *
Practicality of precautions *
Benefit of Defendant's conduct
Common practice
'State of the art' defence
Sport

Question 5

Establishing breach is very much a …

Answer 5

… balancing act between likelihood of harm, magnitude of harm and practicality of precautions. (And where relevant benefit of conduct and common practice).

Question 6

Bolam Test

Answer 6

The general principle is that a professional will NOT be in breach of duty if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that field.

Question 7

The Bolam Test does not apply …

Answer 7

…. when a medical professional fails to advise a patient of risks. The test of materiality applies instead.

Question 8

Two stages in determining whether there has been a breach of duty

Answer 8

(1) STANDARD OF CARE to be expected of the defendant must be established. This is a question of LAW.
(2) Once this has been ascertained, all the facts and circumstances must be examined to see if the defendants has fallen below that standard, i.e. BREACHED THE DUTY. This is a question of FACT.

Question 9

Case - Blyth v Birmingham Waterworks (1856)

Answer 9

Defendants must behave as a reasonable person would in all the circumstances.

(A person does not have to do everything possible to prevent harm. Rather they have to reach the standard of what a reasonable person would do).

Alderson B gave the classic description o f the standard of care here.

Question 10

Case - Glasgow Corporation v Muir (1943)

Answer 10

something to do with objective test??? (see slideshow 3)

Question 11

Cases relevant to test ‘on the act and not the actor’

Answer 11

Nettleship v Weston (1971) {Drivers}
Wilsher v Essex AHA (1986) {Doctors - ‘act and not the actor’ DQ but principle can be used in other cases}
Condon v Basi (1985) {Competitive sports}

Question 12

Bolam v Friern Hospital Management Committee (1957)

Answer 12

The test is the standard of the ordinary reasonable man exercising and professing to have that skill.

(A man need not possess the highest expert skill … sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art)

NB: ‘not negligent if he is acting in accordance with such a practice, merely because there is a body of medical opinion which takes the contrary view’

Question 13

Professional Negligence

Answer 13

NOT a separate tort but a particular AREA where ordinary common law negligence applies and operates: the ‘act not actor’ principle points to a different standard of care for professionals.

Question 14

When can a lower standard of care be applied?

Answer 14

Children

Illness and disability

Question 15

Standard of care (Test - Children)

Answer 15

In the case of children, the standard required will be that of the reasonable child of the defendant’s age.

Question 16

Case - Mullin v Richards (1998)

Answer 16

Standard required will be that of the reasonable child of the defendant’s age

Question 17

Case - Roberts v Ramsbottom (1980)

Answer 17

Slideshow 3

Negligent; he was judged against the standard of the reasonable competent driver. He should have stopped the car as soon as he realised that his driving was being affected.

Question 18

Case - Mansfield v Weetabix Ltd (1998)

Answer 18

Slideshow 3

The defendant should be judged in comparison with a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive. The driver was thus found NOT LIABLE.

Question 19

Case - Bolton v Stone (1951)

Answer 19

Related to likelihood of harm (small)

Slideshow 4

Question 20

Case - Haley v London Electricity Board (1964)

Answer 20

Related to likelihood of harm (not so small that it should be ignored)

Slideshow 4

Question 21

Case - Paris v Stepney Borough Council (1951)

Answer 21

Related to magnitude of harm (seriousness of injury) - if an injury that may occur would be serious, greater care will needed than if the risk was of a more minor injury.

Slideshow 4

Question 22

Case - Watson v British Boxing Board of Control Ltd (2001)

Answer 22

Relating to magnitude of harm (seriousness of injury) - _____

Slideshow 4

Question 23

Case - Latimer v AEC Ltd (1953)

Answer 23

Practicality of precautions - neither of the other precautions were justified given the small risk of injury to the claimant

Slideshow 4

Question 24

Case - Watt v Hertfordshire County Council (1954)

Answer 24

Relating to the benefit of the defendant’s conduct

It was held no breach by the fireman’s employer as the risk of injury was so small and the ultimate aim of saving life justified taking the risk.

Where life is at stake, abnormal risks may be justified.

Question 25

Case - Ward v L.C.C (1938)

Answer 25

Where life is at stake, abnormal risks may be justified (Watt v Hertfordshire County Council) HOWEVER, this is not a blanket exemption for the emergency services. Indeed, a fire authority was held liable to damage caused by going through a red light on the way to a fire.

Question 26

Compensations Act 2006 s 1

Answer 26

Reflecting the position established in common law, s 1 of the Compensation Act 2006 allows courts to consider the deterrent effect of the potential liability on socially desirable activities.

Question 27

Do another flashcard on s 1 of Compensations Act

Answer 27

See slideshow 4

Question 28

Social Action, Responsibility and Heroism Act 2015

Answer 28

This act requires that when a court is considering whether a person has been negligent it must take into account whether: - The person was acting for the benefit of society or any of its members - The person demonstrated a predominantly responsible approach towards protecting the safety or other interest of others - The alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

Question 29

Case - Re Herald of Free Enterprise (1987)

Answer 29

If a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the d's favour and the d may escape liability. ? HOWEVER, note that the court can always rule that the common practice is itself negligence as it did in this case.

Question 30

Define 'state of the art defence'

Answer 30

The courts must assess the defendant's actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach and NOT at the time of COURT HEARING.

Question 31

Relevance of 'state of the art' defence

Answer 31

This principle is relevant to establishing whether there has been a breach (and is NOT RELEVANT TO DEFENCES).

Question 32

Case - Roe v Minister of Health (1954)

Answer 32

Related to 'state of the are' defence Unforeseeable risks cannot be anticipated and therefore failing to guard against them will not be regarded as negligence.

Question 33

Case - Wooldridge v Summer (1963)

Answer 33

When the defendant is participating in sport, the demands of the game will be foremost in their mind as they are likely to take risks in the heat of the moment. In this case it was decided that nothing short of reckless disregard for the claimant's safety would constitute a breach. Although in this case it was a spectator, rather than another participant that was injured.

Question 34

Case - Watson v Gray (1998)

Answer 34

It was held that there would be a breach of duty if the reasonable participant (of the defendant's level) would have known that there was a significant risk that what they did could result in serious injury.

Question 35

Case - The Wagon Mound (No 2) (1967)

Answer 35

A balancing act All relevant factors need to be balanced to determine if there has been a breach.

Question 36

Proof of breach

Answer 36

The burden is on the CLAIMANT to prove that the defendant breached the duty of care. In order to discharge this burden, the claimant must show this, on the balance of probabilities.

Question 37

s 11 Civil Evidence Act 1968

Answer 37

If the incident that caused the claimant’s injury led to a criminal prosecution being brought against the defendant, then the claimant may be helped by relying on any conviction that results if the conviction is evidence of careless conduct eg dangerous driving. Double check slideshow 4

Question 38

Define 'res ipsa loquitur'

Answer 38

Maxim means 'the facts speak for themselves'

Question 39

Proof of breach - res ipsa loquitur

Answer 39

In a very small number of cases, the claimant may also be assisted by the maxim res ipsa loquitur.

Question 40

Application of 'res ipsa loquitur'

Answer 40

- In a very small number of cases, the claimant may also be assisted by the maxim res ipsa loquitur. - The maxim is used where the only plausible explanation for the claimant’s injuries is negligence by the defendant. - If the maxim applies it will then be for the defendant to adduce evidence that shows that they were not negligent. - The maxim, therefore, helps claimants who have difficulty proving exactly how an accident occurred.

Question 41

Case - Scott v London and St Katherine Docks & Co (1865)

Answer 41

Relation to res ipsa loquitur ? Slideshow 4

Question 42

Three conditions must be satisfied for maxim (res ipsa loquitur) to apply:

Answer 42

1. The thing causing the damage was under the control of the defendant or someone they are responsible for 2. The accident would not normally happen without negligence; and 3. The cause of the accident is unknown to the claimant i.e. the claimant has no direct evidence of the defendant's failure to take care DOUBLE CHECK SLIDESHOW 4

Question 43

Case - De Freitas v O'Brien and Connolly (1995)

Answer 43

See video on slideshow 5 Court held NO BREACH because even though majority of doctors disagreed the 11 surgeons were considered a responsible body ???

Question 44

Case - Bolitho v City and Hackney Health Authority (1997)

Answer 44

Despite Bolam the court can find a professional negligent if it concludes that the 'practice accepted as proper' does not withstand logical analysis. ? ....... see video of slideshow 5 KEY CASE

Question 45

Case - Crawford v Charing Cross Hospital

Answer 45

Regarding 'state of the art' defence in a professional context Would be both impractical and unrealistic to expect a professional to know every new development in their field at any given moment in time. HOWEVER ... GMC: doctors must do what IT IS REASONABLE TO KEEP UP TO DATE with new developments by going on professional developments and courses and case - Gascoine v Sheridan (1994) NB: Also issue of internet and how information is more available nowadays.

Question 46

Case - Gascoine v Sheridan (1994)

Answer 46

Doctors must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals.

Question 47

Bolam Test does NOT apply when ...

Answer 47

... considering whether a medical professional is in breach of duty for a failure to warn of risks of procedures.

Question 48

Case - Montgomery v Lanarkshire Health Board (2015)

Answer 48

Bolam Test DOES NOT apply when considering whether a medical professional is in breach of duty for a failure to warn of risks of procedures in any recommended treatments and of any reasonable alternative or variant treatments.

Question 49

Define 'material risk'

Answer 49

A material risk is one which a reasonable person in the patient's position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to.

Question 50

Exceptions for medical professionals to ensure the patient is aware of any material risks involved

Answer 50

A medical professional can withhold information as to a risk if they: - Consider that its disclosure would be seriously detrimental to the patient's health - Also excused from conferring with the patient in circumstances of necessity e.g. where the patient requires treatment urgently but is unconscious

Question 51

Why is the Bolam test not applicable when considering a failure to advise as to risks?

Answer 51

The court stated that the Bolam test is concerned with the exercise of professional expertise. HOWEVER, some decisions that a doctor (for example) makes are not connected with medical expertise. The decision about whether or not to advise as to risks was such a decision: it had more to do with the way in which the doctor-patient relationship should be viewed than it did with medical expertise. Accordingly, the Bolam test is not relevant when considering a failure to advise as to risks - a medical professional is required to consider matters primarily from the patient's point of view.

Question 52

Where the professional standard of care has been set, the starting point for determining whether the defendant has fallen below this standard is the ...

Answer 52

... Bolam Test