Breach Of Duty Flashcards
(7 cards)
What is the general standard of care?
Whether D’s actions are those of a reasonable person, in all the circumstances.
What is the professional standard of care?
Bolam - did the doctor act in a manner accepted by a responsible body of medical professionals and if so, if there a logical basis for their acting in such a manner? Junior doctors are judged on same standard, lack of experience is no defence.
Judged by a reasonable person with that same skill/ trained in that profession.
What are the special categories of standard of care?
- children are judged by the standard of those a similar age;
- for sporting activities, a duty only arises where there is a reckless disregard for safety
- where there is an unskilled D (I.e learner driver, they are judged to a reasonably competent standard)
- where the D suffers an illness, they will be liable if they knew they were ill and carried on the activity
- emergency situations - the duty is to exercise such care and skill as is reasonable in the circumstances
- state of knowledge (e.g medical knowledge) will be judged at the time of the incident
Other factors the court considers when assessing the standard of care
- cost of precautions
- social value
- likelihood of harm
- seriousness of injury
Res ispa loquitor
“The thing speaks for itself” - the actual occurrence of the incident is evidence of negligence. If argued by C then the burden of proof shifts to D to prove that the incident could have occurred without negligence
What are the requirements for res ipsa loquitor
- control - whatever caused the damage must be in the control of D
- the damage would not normally occur without negligence
- the cause of the accident must be unknown
What is the significance of the Civil Evidence Act 1968
Criminal convictions can be used in evidence in civil proceedings if the offence the D is convicted or involves negligent conduct. The burden of proof will shift to D to prove that they were not negligent.
