B) Breach OF DUTY PDF

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B) BREACH OF DUTY In order to determine whether a defendant is in breach of his duty of care, the law sets a standard which effect is that the conduct of the defendant is compared to the conduct of the reasonable man. Who is the “reasonable man” in the eyes of the law? Would there be different types...

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B) BREACH OF DUTY 1. In order to determine whether a defendant is in breach of his duty of care, the law sets a standard which effect is that the conduct of the defendant is compared to the conduct of the reasonable man. Who is the “reasonable man” in the eyes of the law? Would there be different types of the “reasonable man”, leading to different standards? Is this fair? - 1th Issue: Who is the “reasonable man” in the eyes of the law? - Glasgow’case - London Passenger’s case - Charlesworth and Percy - Hall v Brooklands Auto Racing Club * explain the meaning/ definition of reasonable man in law - 2nd Issue: Would there be different types of the “reasonable man”, leading to different standards? Is this fair? - Breach occurs when the defendant does something that is perceived to be below the minimum standard of care required of him, which is measured through the standard of a reasonable man. - In Blyth v Birmingham Waterworks Co, it was stated that negligence is the omission to do something which a reasonable man would do, doing something which a reasonable man would not do. - There are 7 circumstances of the ‘reasonable man’ which leading to the different standards. - Firstly, the flexibility in the meaning of ‘reasonableness’. Here, reasonableness does not mean perfection. The reasonable man need not be a model citizen nor perfect in every aspects. As in Lord Macmillan in Glasgow Corporation v Muir, it stated that the foresight of the reasonable man eliminated the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Meaning to say, the personal characteristics of the defendant will not be taken into account. However, it will still see the usual norms and activities in a particular society or a particular profession will be considered in determining the reasonableness of the defendant’s conduct. It is also up to the judge to determine it. This is because, what may seem to be reasonable, normal and thus acceptable to one judge may be something unreasonable, absurd and unacceptable to another. - Secondly, the level of intelligence and knowledge. The D’s actions must conform to the criteria expected of a person of normal intelligence. It is no good if the D has done his ‘best’, if his ‘best’ is below that of the reasonable man. Similarly, if the D is of higher intelligence than the reasonable man, he will not be expected to reach that personal higher level of intelligence to a given situation. The standard against which his conduct is measured remains that of the reasonable man. However, if the D is a person is deemed to possess particular knowledge about a specific situation, the standard of care applicable to him is that of the reasonable man in that position. - Thirdly, the D who has or professes expertise in a particular field. This divided to 2 categories. First is when a person professes to have a special skills or expertise in a

particular filed, he will be judged as against other persond who possess the same skills. In the case of Philips v William Whiteley, the court held that the standard of care required of a jeweller when piercing a person’s ears for purposes of wearing earrings is that of a skilled and competent jeweller doing such work, not of a competent surgeon. Secondly, when an ordinary person who conduct his own repair works which in fact require a certain degree of skill, is expected to reach and exercise the standard of care of a reasonably skilled person performing these repair works. In the case of Wells v Cooper, the court held that the standard of care required of the D was the standard of a reasonably competent carpenter.

- Fourth, the D with an incapacity or infirmity. The general principle as stated above, is that D’s personal characteristics are not taken into acc in assessing whether he has acted reasonably or otherwise in the particular circumstances. So, the court here will see whether the D with an incapacity is unaware of his disability and could not reasonably be aware of it. As in the case of Roberts v Ramsbottom , the driver was found liable in negligence even though when the accident occurred his consciousness was impaired by a stroke. The court felt that he ought to have been aware that he was unfit to drive, and so the standard of care required was that of a skilled driver. - Fifth, the child D . The standard of care required of a child D is the foresight of a child of the same age. This fall into a special category. In McHale v Watson, the D aged 12, threw a piece of welding rod which had been sharpened at one end, at a wooden post. The rod ricocheted off the post and hit the P. The HC here applying the foresight and prudence of an ordinary boy of 12, found the D not liable. * some of cases also talk about gender - boys: rough, careless, don’t pay attention, more rebellious - girls: more polite, follow the rules - Sixth, the driver of a vehicle. There is an exception to the general rule also if the D is the driver of a vehicle. If the driver is not under any disability or infirmity, the standard required is that of the ordinary skilled driver. According to the case of Roberts v Ramsbottom, the driver was found liable in negligence even though when the accident occurred his consciousness was impaired by a stroke. The court felt that he ought to have been aware that he was unfit to drive, and so the standard of care required was that of a skilled driver. - Seventh, the professional D. Bankers, doctors, accountants, lawyers, architects, engineers and all who specialise in particular skills are professionals who are bound to exercise the care and skill of ordinary competent practitioners in their respective professions. Meaning to say, the standard of care that court will look at is from a reasonable professional, not in the same category of an ordinary person. This standard is naturally of a higher level than that required of the ordinary man on the street. In Bolam v Friern Hospital Management Committee, the D was found not liable as he had conformed to the standard of reasonable doctors and his not holding down the P’s body was not an improper course of action. - Must have introduction in exam which include the stages (in here there 2 stages)

2. Risk factors are taken into account by the courts in determining whether the defendant is in breach of duty. Discuss the risk factors currently applicable in the law. - The conduct of the reasonable man is subject to the concept of risk or known as the risk test. In assessing risk, the courts have traditionally been guided by 4 factors, namely the magnitude of the risk, the practicability of precautions, the utility of the act of the D and the general and approved practice. - First, the magnitude of the risk . The degree of care required of The D must be weighed against the magnitude of risk or the degree of risk created by the D’s conduct. The magnitude of risk divided into 2 factors. A) Probability of the injury occurring - In Bolton v Stone, the court held that the distance between the place wehere the ball was hit to the edge of the field which was surrounded by a 7 foot wall made injury to the P rather remote. The court also held that although a reasonable man may foresee many risks, life would be incovenient if precautionary measures are to he taken for all foreseeable risks. A person must only take reasonable steps against risks that may materialise. B) Seriousness of the injury - If the D has actual knowledge of the circumstances of the P and the D has a duty to protect the welfare of that P, the measure of care undertaken must be proportionate to the individual needs of the P. In Paris v Stepney Borough Council, the P who was blind in one eye worked for the D & the working conditions were such that there was risk of injury to the eyes. A piece of metal hit his good eye when he was working and he was completely blind thereafter. The court held the employer is liable as he must take into account the probability of injury occurring to the particular employee if an accident happen. - Second, the practicability or cost of precautions to the D. The risk must be measured against the precaution that needs to be taken, and all precautionary measures undertaken by the D will be taken into account in determining the reasonableness of the D’s conduct. In Latimer v AEC, the court stated that if the risk of injury is low, it would be unfair to require a lot of expense on the part of the D to reduce the risk. In short, the courts have to consider the practicability of precautions as against the disadvantages of halting the activity altogether. - Third, the importance of the object to be attained . Sometimes the social importances or utility of the D’s actions will allow him to incur risks of injury in his undertakings. As in Daborn v Bath Tramways Motor Co Ltd, the D drove a left-hand drive car and due to his negligence in signalling, an accident occurred. The court held the D is not liable as the car was used an ambulance during the war period. The social importance of the D’s act outweighed the importance of his duty of care to others. However, in Ward v London County Council, a fire-engine driver was held liable for not stopping at a red light. Therefore, the court will take into account the emergency situation in order to determine whether the D’s course of action was reasonable in the circumstances. - Lastly, general & approved practice. An established standard practice may well be the practice of reasonable and prudent persons in the D’s position, but it may fall

below or surpass the standard required by law of a reasonable and prudent person. In General Cleaning Contractors v Christmas, the court held that the principle which emerges is that even if an act is a general and common pratice, liability will still be imposed if the act is dangerous and gives rise to a considerable degree of risk of injury. 3. Read the following cases:  Bolam v Friern Hospital Management Committee [1957]2 All ER 118(Bolam Test) Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 (BT) Rogers v Whitaker [1992] 175 CLR 479 (MaterialTest/ Rogers Test) Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (Rogers Test) Zulhasnimar Hasan Basri v Dr Kuppu Velumani P [2017] 8 CLJ 605 (Bolam Test) You are expected to be familiar with the following after reading the cases – (i) Facts of the cases, and the judgements, particularly the dissenting judgement in Sidaway - Facts: In this case, the P brought an action against the hospital and surgeon who performed an operation on her back. The operation she had undergone carried an inherent risk to her spinal column and nerve roots. Even if it was performed perfectly, there was still about a two per cent chance that she would suffer injury to her spinal column. As it turned out, the operation was performed correctly, but the P suffered injury to her spinal column. She brought an action for negligence based solely on the ground that she had not been warned of the inherent risks of the procedure and that she would not have consented to the operation had she been so informed. - Held: The lower court found the D not liable for not disclosing to the P the risk of injury to her spinal cord as the surgeon had acted in accordance with accepted medical practice. The CoA upheld the judge’s decision. - A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death. However, where a patient does not ask as to the risks, Lord Diplock said: ‘we are concerned here with volunteering unsought information about risks of the proposed treatment fail in to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. - The Bolam test should be applied and a doctor’s duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all.’ - However, Lord Scarman’s dissenting judgement that the Bolam test is applicable in determining whether a doctor has discharged his duty to warn his patient of risks

inherent in a particular treatment. Lord Scarman said: ‘Damage is the gist of the action of negligence’. (ii) State the principle of law on the standard of care for doctors – analyse it. - All cases above, except Foo Fio Na and Rogers v Whitaker, applied Bolam Test. It is not necessarily for a doctor to inform a patient about the risk and possibility of success of an operation. A doctor will not be held liable because it is not a negligent act because a doctor has an option to tell or not to tell the patient about the risk of the operation Therefore, if a doctor doesn’t tell the risk of the operation to the patient, a doctor will not be held liable. - However in Bolam’s case, there are two conflicting views arose which were during ECT, the patient’s body must be held down, another view was that that was not necessary. The court found the defendant not liable as he had conformed to the standard of reasonable doctors and his not holding down the plaintiff’s body was not an improper course of action. A doctor’s standard of care must be reasonable and according to his post as a doctor but his level of knowledge or experience, if a certain action is not necessary and not reasonable, a doctor should not be held liable. - While in Foo Fio Na, the FC held that the applicable test in determining the standard of care of a medical practitioner in relation to disclosure of info and risks is not the Bolam Test. Instead the medical practitioner has a duty to warn a mentally competent patient of risks of a proposed procedure so as to enable the patient to decide whether to proceed or decline it accordingly. (iii) What reasons can you think of, in defence of the open-endedness (no limit) of the standard of care? (You can also approach this question from this way – why is the standard of care set against the opinion of “competent, respected professional opinion”? What dangers would there be in allowing the average ordinary man like you and I, to set the acceptable medical standards? - The standard of care required of the doctors which is reasonable professional should not be apply as it would be unfair and unjust. Although a doctor is a profession, has more knowledge to an ordinary person, but bear in mind that they are human as well, they might have made mistakes and other unplanned or unintentional act, if a standard of care is set to be so high and always based on the profession level of standard of care, a doctor might be judged very unfairly and even when unreasonable incidents happen, a doctor would be held liable just because of his profession and he is expected to have done all the precautions or even unforeseeable accident. - In my opinion, an acceptable medical standards should be like when a doctor is giving our medicine, the medicine must be accurate to the illness, if there is any side effects of the medicine, he must tell the patient about it. -Who’s opinions we should we refer to, whether the patient’s? the doctor’s? the court? The reasonable professional? Or who? (must mention in the answer) - then talk about the consequences (iv) The main issue between Bolam and Whitaker is whether the standard ought to be measured from the medical profession’s perspective or the reasonable patient’s perspective. Consider the pros and cons of both perspectives.

From the medical profession’s perspective (bolam test) The pros: - Maybe that is for the patient’s goods. This is because despite there are probability of side effects, the patient might have the chance to cure/ heal. By not telling the consequences, this may prevent from the patient to run away from the hospital as they does not want to take the consequences. The cons: - Every doctors has different opinions and perspective - I think a patient has the right and option to choose whether to continue or stop the operation. A doctor could give advice or guidance, patient still has to be responsible for his own life, he should own the choice if the doctor makes decision for the patient, it is not fair to the patient as well

From the reasonable patient’s perspective The pros: - This will standardlise the duty of care of every doctors. - So that the doctors will be more careful in everything they do as the job is involving with life and dead of the patients. The cons: - Doctors might feel pressure and eventually stop being a doctors as they scared to be consider as liable for - It is unfair as they are human as well, they might have made mistakes and forget - first mention about the issue and the tests - then pros and cons (v) What is your view on our Federal Court decision to adopt the test on Whitaker as the applicable standard for provision of information, in Malaysia? - In my opinion, I think that it is not applicable, I disagree with the judgment of “An error of clinical judgment is not necessarily indicative of negligence”. A doctor is a professional medical practitioner who was being relied on the society or patients for medical advice. A doctor practices as a professional member of the medical field, should have known that a patient is relying on them and depending on their accurate advice. If he couldn’t provide such information, he should be held liable in whatever matter as long as it is reasonable to do so. If every operation or treatment fails and a patient sacrifices his life because of a wrong advice from a doctor, and every doctor raises the defence of this, it becomes unfair and unreasonable to the patient. - Therefore, the test on Whitaker is not suitable to be applied in Malaysia, a medical practitioner should have the responsibility to take care of the patients. - must talk a little bit about the judgement in the FC, then follow up with our own opinions. - suggest some consideration: how Malaysian behave? Then what is the consequences? Why UK doesnt apply this ?

4. Steve and Martin are best friends. During the last Christmas break, they decided to go for a vacation to Andalusia. They flew to Andalusia via Magnetic Airlines, the only airline flying to Andalusia. The journey to Andalusia was scheduled to take about 15 hours and the weather was forecasted to be pleasant throughout the journey. About 12 hours into flight, the plane they were flying in started to shake violently. Some overhead compartments burst open, causing the stored baggage to fall on several passengers. All of a sudden, oxygen masks were released, causing more panic. Children started to cry whilst adults started to cry, thinking that the plane was about to crash. Steve was seated at the aisle row. During the chaos, a heavy piece of luggage stored in the overhead compartment fell on him. Blood started to ooze out from a rather deep wound on his head. He fainted. Martin was in the toilet when the shaking started. He tried to open the toilet door but the latch was stuck. He tried again for several times but the door refused to open. He shouted for help and even started banging on the door but no one heard him. Since he is a claustrophobic, he started to sweat profusely(in large amount) after being confined for about 10 minutes. He felt that the walls were closing in on him and that he could not breathe. At one point, he thought that he was going to have a heart attack. After 15 long minutes of unstable flying, the shaking gradually lessened and eventually stopped. The pilot then made an announcement, apologizing for the incident and tried to reassure everyone that “…everything is...