Chapter 3 - Breach of Duty Flashcards
What two questions of law are asked when establishing if there was a breach of a duty of care?
1 - what is the standard of care
2 - has the defendant met the standard of care
What are the four key facts (not 4 tests!) of the test for breach of duty from Blyth v Birmingham Waterworks Co [1856]?
1 - the test is objective (judged against reasonable person)
2 - negligence is unintentional
3 - a reasonable person can decide by experience if harm is foreseeable
4 - it’s not negligent to fail to protect against an unlikely event
What is the reason for comparing a defendant against a ‘reasonable person’?
To stop defendants using their own low standards
What may be taken into account when deciding the standard of care of a reasonable person?
A defendant’s age. Children are often judged by reasonable person of the same age (Orchard v Lee)
What happens when a defendant has particular skills or expertise?
The standard expected will be higher, the reasonable person is expected to have the same skill level as the defendant (Bolam v Friern Hospital Management Committee [1957])
What happens where there are two conflicting bodies of professional opinion?
A professional defendant will not be liable providing they can show they acted in accordance with one of the opinions.
Which case allows courts to decide if a particular medical opinion could reasonably be held?
Bolitho v City and Hackney Health Authority [1997]
What rule relating to medical duty of care is shown in Chester v Afshar [2004]?
A surgeon’s duty of care requires them to warn a patient where there is a small unavoidable risk of an adverse result from an operation
What did the Supreme Court say was the default position in relation to informed consent in Montgomery v Lanarkshire Health Board [2015]?
That patients should be allowed to give informed consent and so should be informed of material risks.
What is the principle from Roe v Minister of Health [1954] regarding the standard of a professional person?
That the standard should be judged on the knowledge available at the time of the incident - “We must not look at the 1941 incident with 1954 spectacles” Lord Denning
What is the test regarding likelihood of risk and how does it affect the foreseeability and standard of care? Add case law
The magnitude of risk test - the greater the chance of the accident, the more care should be taken. The smaller chance, the less obligation there is to guard against it. Bolton v Stone
Give a case law example of a case where the risk was so significant that it should not have been disregarded?
Haley v London Electricity Board [1964]
Other than if the harm was reasonably foreseeable, what three factors may help to determine if there was a breach?
1 - the vulnerability of the claimant
2 - the importance of the defendant’s objective when the tort occurred
3 - the cost of avoiding the harm
How does the vulnerability of the claimant affect the standard of care, and give a case law example?
If the claimant is particularly likely to be harmed, the standard of care is higher. Paris v Stepney Borough Council [1951] or Watson v British Boxing Board of Control [2001].
How does the importance of the defendant’s objective affect the standard of care, and give a case law example?
If the defendant is engaged in a socially desirable activity at the time of the act likely to cause harm, then it may be justifiable. Watt v Hertfordshire County Council [1954]. Court must balance the potential harm against the potential utility of the objective.
