Breach of duty of care PDF

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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. Magnitude of the risk created by the defendant’s conduct must be weighed against the degree of cared. Magnitude of risk may be divide...

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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.

Magnitude of the risk created by the defendant’s conduct must be weighed against the degree of cared. Magnitude of risk may be divided into two factors, which are the probability of the injury occurring and the seriousness of the injury. For probability of the injury occurring, in the case of Bolton v Stone, the like hood of someone getting injured by the cricket ball was so slight that make the defendant not liable for not taken extra precautions. A person must only take reasonable steps against risks that may materialise. However, in Miller v Jackson, because of the short distance between the pitch and the fence, the defendant was held liable. The precautionary measures adopted by the defendant were insufficient to overcome the risk of injury to the plaintiff. In the case of Susan Cheah v Mayban Finance, deposit boxes in the strong room were taken by burglars that tunnelled their way underground. Due to the lack of advanced security system in their premises, the defendant was found to have acted below a reasonable standard of care. The second factor is, seriousness of the injury risked to the plaintiff as a result of the defendant’s conduct. In Paris v Stepney Borough Council, if the defendant knew or ought to know that the risk of injury to the plaintiff is higher than usual, then he must take extra precautions to avoid the potential injury. By contrast, in Eastman v South West Thames Regional Health Authority, if the injury was because of the plaintiff’s action and the defendant had taken adequate precaution, the defendant will not be liable. The second factor is, practicability or cost of precautions to the defendant. The risk must be measured against the precaution’s measures taken by the defendant to determine the reasonableness of the defendant’s conduct. In Latimer v AEC, defendant’s factory was flooded and precautionary steps had been taken by placing sawdust in certain area. The plaintiff slipped and fell due to the slippery area and contended that defendant should shut the factory down. The courts have to consider the practicability of precautions as against the disadvantages of halting the activity altogether. In Hamzah & Ors v Wan Hanafi bin Wan Ali, the Federal Court held that the defendant was not liable because precaution measures had been taken by written notices and oral warning for the passengers not to jump off before the trains fully stopped. It is sufficient because extra precautionary measures may make the cost increase. The third factor, importance of the object to be attained. Social importance or utility of the defendant’s action will allow him to incur risks of injury. In Daborn v Bath Tramways Motor Co Ltd, due to the defendant’s negligence in signalling, an accident occurred. The car was used as an ambulance during the war period and made him not liable. The social importance of the defendant’s act outweighed the importance of his duty of care to others. However, in Ward v London County Council, the fire-engine driver was held liable because not stopping at a red light because the risk will not be justified just because for the purpose of saving life. In Mahmood v Government of Malaysia & Anor, the police was not held liable for shooting the plaintiff negligently because the police had a reasonable suspicion that an offence was committed and to prevent him from escaping. The last factor is, general and approved practice. If the defendant had done something that was generally accepted or accordance to common practice, then the defendant will have acted reasonably. In General Cleaning Contractors v Christmas, a window cleaner fell down from

the ledge of the window. Even though, it was a common practice for a window cleaner to stand there, however it was a dangerous practice and the employer was liable for not providing a safer system of work. In Aik Bee Sawmill v Mun Kum Chow, defendant will be liable if he did not take extra precautions when instructing a dangerous job.

3. Read the following cases

 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118  Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871  Rogers v Whitaker [1992] 175 CLR 479  Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593  Zulhasnimar Hasan Basri v Dr Kuppu Velumani P [2017] 8 CLJ 605 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: Mrs Sidaway brought an action against the hospital and the surgeon who operated her in 1974. The operation was performed with proper care and skill, but Mrs Sidaway suffered injury to her spinal column. She brought an action against the defendants for not informing her about the inherent risks from the operation which were damaged to nerve root and spinal column but the probability for them to happen was only one or two percent. She said that she will not give her consented if she knew about the inherent risks and the surgeon had negligently did not warn her about that. Held: The appeal failed. The plaintiff had failed to prove that the surgeon had been in breach of any duty of care owed to her in failing to warn her of the risk inherent in the treatment.

Dissenting: Lord Scarman – Whether it is right that medical judgement should determine whether a duty to warn of risk and its scope, exists. He argued that informed consent ought to be recognised in English law as this doctrine is a reflection of the right to self-determination, which is a basic human right protected by the common law.

(ii) State the principle of law on the standard of care for doctors – analyse it. (iii) What reasons can you think of, in defence of the open-endedness 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? (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. (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?...