Breach of duty Flashcards
What is the general standard of care?
D must reach the standard of what a reasonable person would do (objective test)
How is a standard of care set?
It is based on the act and not the actor, which is tailored to the activity being undertaken regardless of the level of experience an individual may have
What is the professional standard?
Based on what the reasonable professional in that field would have done rather than what the reasonable person would have done
What is the standard of care in relation to children?
That of the reasonable child of the D’s age carrying out that act
When can the standard of care be adjusted?
Where the D suffers from an illness that he was reasonably unaware of whilst the tortious act was being committed
What are factors which can assist in determining whether there has been a breach of duty?
The likelihood of harm (a reasonable person is only expected to take precautions against risks reasonably likely to happen), magnitude of harm i.e. seriousness of injury, the practicality of precautions being taken and balancing the cost and practicality of these against the severity of the risk, benefits of the D’s conduct in particular the potential benefits to safety and whether the D can show they were acting in accordance with a common practice in that field
What will the court consider in determining whether the D should have taken particular steps to meet a standard of care?
Whether those steps prevent a socially desirable activity to an extent or in a particular way or discourages persons from undertaking functions in connection with a desirable activity
What is the state of the art principle?
Where the courts assess the D’s actions against the knowledge in the profession and/or accepted practice at the time of the breach
Where does the burden of proof rest to prove a breach of duty of care?
On the C and must prove this on the balance of probabilities
How may a C be assisted in proving a D breach?
S11 Criminal Evidence Act 1968 - can use criminal convictions which support the D in proving careless conduct.
When can the maxim ‘Res ipsa loquitur’ (the facts speak for themselves) apply?
The thing causing the damage was under the control of the D or someone they are responsible for, the accident would not normally happen without negligence and the cause of the accident is unknown to the C (no direct evidence)
What is the Bolam test in regards to professional negligence?
If the professional has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art then he is not guilty of negligence. Just because there is a body of medical opinion having a contrary view does not constitute negligence (opinion does not need to be of the majority, merely an acceptable one)
What must the D also show to prove he was not in breach?
That the opinion has a logical basis and that the professional has considered the comparative risks and benefits and has then reached a defensible conclusion
How does the ‘state of the art’ principle apply to medical professionals?
Professionals must follow changes recognised in mainstream literature but not need to be aware of content in more obscure journals
Does the Bolam test apply to medical professionals for a failure to warn of risks of procedures?
Under a duty to take reasonable care to ensure patient is aware of any material risks involved in any recommended treatment and of any reasonable alternatives
