Breach of Duty Flashcards
What are the 2 stages for determining a breach of duty?
1) Establishing a standard of care- this is a question of law
2) Establishing that the defendant has breached that duty
How do you establish if there is a standard of care?
1) The reasonable person test- what would a reasonably competent person do/threshold?
This standard is lower for Children and those with illness/disability
What is the professional standard?
However there is also a professional standard- i.e what would a competent surgeon (for example). This is for when a person is carrying out a skilled subject that the ordinary person does not have. Comes from Bowlem- standard of care is that of an ordinary man, exercising and professing to have that special skill. Does not have to have the highest expert skill- only have to display ordinary skill of the reasonably competent person in that field
What is the difference between act/actor in the standard of care?
It is the act not the actor that sets the standard of care- eg a trainee solicitor is compared to that of a reasonably competent qualified solicitor
What is the second stage of breach?
Breach of duty
What are the factors relevant to breach?
1) usual or common practice
2) Likelihood of hard
3) Magnitude of harm
4) Practicality of precautions
5) benefit of D’s conduct
6) sport
7 ‘State of the art’ defence
What is a simple equation for breach of duty?
Likelihood of harm x Magnitude of hard vs Cost of precautions + benefit of D’s Conduct
What is the Bolam test for professional act
“a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”- if the professional has acted in accordance with such practice
What is the ‘state of art’ defence
this is the courts approach where they look at the knowledge of when the act took place (e.g if it takes 4 years for the claim to get to court, the court will look at the approach that would be taken 4 years ago- i.e when the act took place)W
What are the limitations to the Bolam test?
1) the court has to be satisfied that the body of opinion relied upon can demonstrate that the opinion has a logical basis
2) In relation to risk- the professional is under an obligation to take reasonable care to ensure that the patient/person is aware of any material risks
for sport what is the standard of breach?
Woolridge v sumner- the demands of the game will be foremost in their mind and they are likely to take risks in the heat of the moment- Nothing short of reckless disregard for the claimants safety would constitute a breach
Watson v gray- Breach of duty if the reasonable participant of the defendants level would have known that there was a significant risk that what they did could result in serious injury
