Breach of duty

Question 1

What are the 2 stages for determining if duty breached?

Answer 1

1. Standard of care expected of D to be established (Q of law)
2. All facts and circumstances considered to see if D fell below standard (Q of fact)

Question 2

What is the starting point for standard of care?

Answer 2

D must behave as a reasonable person would in all the circumstances

Objective and impersonal standard

‘Fee from over-apprehension and over-confidence’

Question 3

Is the test for standard of care based on the act or the actor?

Answer 3

Based on the act not the actor

No allowance for being junior/inexperienced

Nettleship - learner driver judged by standard of ordinarily competent driver (no allowance for lack of experience)

Wisher - junior doctor held to standard of a uniform doctor standard (but not if they sought advise from more experienced colleague)

Condon - higher degree of care expected from first division footballer than local league player

Question 4

What is the standard expected from professionals?

Answer 4

Standard based on what the reasonable professional, not person, would have done

“The ordinary reasonable man…professing to have that special skill”

Professional negligence; example of act not actor principle

Bolam - C treated for depression, two bodies of competent medical opinion as to procedure in electro-convulsive therapy; one against relaxant drugs - no drugs were used and C suffered fracture pelvis (if drug had been used fracture risk excluded) test is the standard of ordinary reasonable man professiong to have that special skill

Question 5

What is the standard required from children?

Answer 5

The reasonable child of D’s age carrying out the act

Mullin - 15 y/o schoolgirl injured another schoolgirl’s eye during playfight - correct test was whether reasonable and careful 15 y/o would foresee risk of injury - D did not fall below standard; practice was common and not banned in schooland could not have reasonably foreseen risk of injury

Question 6

What is the standard expected from those with an illness or disability?

Aware v unaware

Answer 6

• If unaware = standard of someone who is unaware they are suffering from condition
• If aware = standard of reasonable competent person

Roberts - D unknowingly suffered stroke before driving into town but aware consciousness was impaired and collided with stationary van before hitting C - driver was negligent and judged against reasonable competent driver; should have stopped car as soon as he realised driving was being affected

Mansfield - lorry driver crashed vehicle into C’s shop after suffering hypoglycaemic attack - no evidence to suggest he knew ability to drive was impaired - standard of care adjusted and judged against reasonably competent driver who is unaware he is suffering a condition impairing ability to drive (not liable)

Question 7

Once question of law (standard of care) established…

What factors are relevant to deciding whether D breached duty?

Whether D fell below standard - i.e. breached duty - is a question of fact…

Answer 7

• Likelihood of harm
• Magnitude of harm
• Practicality of precautions
• Benefit of D’s conduct
• Common practice
• ‘State of the art’ defence
• Sport

Question 8

How is likelihood of harm considered in deciding whether a breach has occurred? Can it be different for different people?

Answer 8

More likely someone is to get injured = more likely there will be a breach

Bolton - C injured by cricket ball hit out of ground with 7ft fence around it, which had happened only 6 times in 30 years - chance of happening so slight that no breach and reasonable person would not have guarded against small risk

Haley - blind C fell down hole in pavement dug by D, D had taken precautions sighted but not blind persons - risk of causing injury to blind people was not small enough to ignore, D should tailor conduct in light of characteristics of people who may be affected by actions

Question 9

How is magnitude of harm considered in deciding whether a breach has occurred?

I.e. if harm is greater, what is needed?

Answer 9

If any injury that may occur would be serious, greater care is needed than if risk was of more minor injury

Paris - D employers knew C employee had only one good eye and still did not give protective goggles, C ended up blind when metal went into good eye - HOL held D was liable; even though risk small the consequences were significant

Watson - body regulating professional boxing breached duty by failing to provide suitable ringside resuscitation equipment and doctors - in part because potential harm was serious brain damage

Question 10

How is the practicality of precautions considered in deciding whether a breach has occurred? How does it relate to foreseeability?

Even if there is a risk

Answer 10

If it would be unreasonable for D to take necessary precautions, even if risk is clearly foreseeable, the court will accordingly not impose liability

Latimer - D’s factory floor became slippery following flood and C slipped but D had taken some precautions, and only further ones to be taken would have been to cease operating factory or employ more people = neither justified

Question 11

How is benefit of D’s conduct considered in deciding whether a breach has occurred?

Risk of preserving what?

Answer 11

If D has taken a risk with aim of preserving life, limb, or property it may be justified (weighed against possible damage)

When life at stake, abnormal risks may be justified

Watt - lifting equipment to deal with emergency (woman trapped under lorry) not property secured in transit and fireman injured in fire engine - no breach as risk of injury small and ultimate aim of saving life justified - not a blanket exemption for emergency services - another case a fire authority was held liable for going through red light en route fire

Question 12

How is the Compensation Act 2006 and Social Action, Responsibility and Heroism Act 2015 relevant to benefit of D’s conduct re breach?

Answer 12

• Comp Act - court must have regard to whether imposing liability will prevent a desirable activity being undertaken at all
• Social Action Act - when considering whether a person has been negligent, must consider whether person was acting for benefit of society or any of its members and whether approach was responsible

Question 13

How is common practice considered in deciding whether a breach has occurred? What is the limitation of this?

Answer 13

• If D can show they have acted in accordance w practice usually followed by others in that field, D could escape liability (esp if there was less specialist knowledge involved in particular area)
• Limitation: a common practice can be held itself negligent e.g. Re Herald - common practice of roll-on roll-off ferry, where ships sailed with the bow doors open, was illogical and negligent

Question 14

How is a ‘state of the art’ defence considered in deciding whether a breach has occurred?

Knowledge/practice

Answer 14

Courts must assess D’s action against knowledge in profession and/or accepted practice at time of breach - if risk unforeseeable, they cannot be anticipated, and failing to guard against them is not negligent

Roe - Cs suffered from paralysis waist down after injected with anaesthetic, and cracks in the ampoules it was stored in meant it had become contaminated - but as this was unknown to anyone the staff could not be expected to know of danger

Question 15

How is sport considered in deciding whether a breach has occurred? Nothing short of what would constitute a breach?

Answer 15

Demands of game will be foremost in mind and likely to take risks in heat of moment

Wooldridge - nothing short of reckless disregard for C’s safety would constitute breach

Question 16

How are the factors used together?

Answer 16

All must be balanced to determine if breach e.g. Wagon Mound - D carelessly spilled oil into harbour water, spark fell into oil from nearby engineers and caught fire leading to significant harm to C’s ships - likelihood of harm low but magnitude of harm very large and it could have been easy to avoid spillage and no clear benefit to D’s conduct = fell below standard of care

Question 17

What is the burden for proving a breach and who is it on?

Answer 17

Burden on C to prove that D breached DOC on a balance of probabilities

More likely than not that D breached duty

Question 18

If the incident that caused C’s injury led to a criminal prosecution being brought against D, what can C rely on?

Answer 18

Rely on any conviction that results if conviction is evidence of careless conduct e.g. dangerous driving

Question 19

What does res ipsa loquitur mean? What is the result of its application?

‘The facts speak for themselves’

Answer 19

• Where only plausible explanation for C’s injuries is negligence by D
• If applied: it will be for D to adduce evidence to show they were not negligent

Rare

Scott - C injured when large sack of sugar fell onto her - could not explain how but as sacks in D’s control the court inferred it must have been due to their lack of care (sacks could not fall by themselves)

Question 20

What are the 3 conditions for res ipsa loquitur to apply?

1

Answer 20

1. Thing causing damage under control of D (or someone they are responsible for)
2. Accident would not normally happen without negligence; and
3. Cause of accident unknown to C (C has no direct evidence of D’s failure to take care)

Question 21

How does the Civil Evidence Act help prove breach?

Answer 21

If incident that caused C’s injury led to criminal prosecution against D - C can be helped by relying on conviction if it is evidence of careless conduct (e.g. dangerous driving)

Question 22

What is the Bolam test a starting point for?

Answer 22

Is the starting point for determining whether a D has fallen below the standard of care where a professional standard has been set

Not restricted only to medical professions but came from it

Question 23

Applying the Bolam test in the medical context, when will a doctor not be negligent?

Body

Answer 23

If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent (i.e. doctor not negligent if he has acted in accordance with practice accepted as proper by responsible body of medical men skilled in that particular art)

Question 24

What constitutes a responsible body of opinion in the context of professional negligence - must it be a lot? Can the court prefer one body of opinion over another?

Re Bolam test

Answer 24

• Does not have to represent majority, only an acceptable one
• Court preferring one body over another is not a basis for conclusion of breach (will always be conflicting professional opnions)

Could be 11/1000+ and still be acceptable

De Freitas - a body of only 11 spinal surgeons (out of over 1000 nero surgeons; majority of whom thought decision was dangerous and unmerited) supported D’s decision to perform surgery without any sufficient evidence to justify it, court held no breach as 11 surgeons made up a responsible body (were all experienced and leaders in field of spinal surgery)

Question 25

How would a court find a responsible body of opinion negligent?

Answer 25

If opinion does not withstand logical analysis D is in breach of duty

Even if common place

I.e. if opinion does not withstand logical analysis = D in breach of duty!

Question 26

How is the knowledge of the profession judged?

I.e. how up to date would a doctor need to be with medical developments?

Answer 26

Impractical and unrealistic to expect professional to know every new development at any given moment in time

GMC does now state that doctors must do what is reasonable to keep up to date

Crawford - C suffered brachial palsy whilst having blood transfusion during surgery and argued that professional should have been aware of risk as it was published in an article in a leading medical journal 6 months earlier - court rejected saying this was impractical and unrealistic (to know every development in field at any given moment in time)

Question 27

Does the Bolam test apply when disclosing the risk of procedures? When are they under a duty to disclose risks involved in treatment and when are they not?

Answer 27

• No, Bolam only relevant for exercise of professional expertise
• Medical professionals are under a duty to make any patient aware of material risks involved in recommended treatment
• But can withhold information if they reasonably consider disclosure would be detrimental to patient’s health

Montgomery - evidence showed that diabetes could lead to arger babies and C was of a small build and diabetic - baby got brain damage when it was starved of oxygen during birth - C argued she should have been warned of risks of shoulder dystocia and if she had been warned she would have elected for a C section - obs did not warn because risk was so small but was in breach

Question 28

What is a material risk in the context of a failure to advise in relation to risks?

Answer 28

A risk that a reasonable person in patient’s position would be likely to attach significance to / the doctor should be reasonably aware that particular patient would be likely to attach significance to

Question 29

When are medical professionals excused from conferring with the patient?

Answer 29

In circumstances of necessity e.g. patient requires treatment urgently but is unconscious

Question 30

What are the 2 limits of the Bolam test?

Summary of the above

Answer 30

1. Court has to be satisfied body of opinion relied upon by D has a logical basis (not enough to show other professionals would have done the same)
2. Does not apply re standard of care required when disclosing risks