Breach of Duty of Care PDF

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Warning: TT: undefined function: 32 Warning: TT: undefined function: 32INTRODUCTION⇒ Once you discover someone has a duty of care, to establish negligence there must have been a breach of that duty of care.THE REASONABLE PERSON TEST⇒ To determine whether someone has breached their duty of care, the ...

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NEGLIGENCE: BREACH OF DUTY OF CARE

INTRODUCTION ⇒ Once you discover someone has a duty of care, to establish negligence there must have been a breach of that duty of care.

THE REASONABLE PERSON TEST ⇒ To determine whether someone has breached their duty of care, the reasonable person test is used. ⇒ The test is as follows: ‘What would the reasonable person have done in the Defendant's circumstances?’ • If the defendant's actions fell below what the reasonable person would have done in the circumstances, then his actions would have breached the duty of care. ⇒ The Key Case : Blyth v Birmingham Waterworks Co (1856) ➢ Negligence is the omission to do something which a reasonable man would do, or doing something which a reasonable man would not do. ➢ A breach of duty is determinable through the reasonable man test. ➢ The question is: would a reasonable man have acted as the D has done if the reasonable man was faced with the same circumstances as the D? ⇒ The standard of the reasonable person: • It is objective (Glasgow Corp v Muir [1943]) ➢ Lord Macmillan: The standard or foresight of the reasonable man … eliminates the personal equation and is independent if the idiosyncrasies of the particular person whose conduct is in question. ➢ D spilled hot tea on some children, and the issue faced by the court was whether the D should have foreseen that injury would occur when he brought a big container of tea through the corridor of the premises. ➢ The court answered in the negative as a reasonable man would not have foreseen such an accident in the circumstances. ➢ The court also distinguished btw things that are naturally dangerous and those which are not. ➢ If the object or thing that gives rise to the negligence is naturally dangerous than it is more likely that liability will be imposed and vice versa. ⇒ Nettleship v Weston: For example, even where the defendant is learning to be an 'expert' (e.g. as a learner driver you are learning to be a fully competent driver), you will still usually be held to the standard of an expert. ➢ The lower court held that the D, a learner-driver was not liable for the injury she caused to the P as she had tried to control the car to the best of her liability. ➢ On appeal, the CoA held that the standard of care required of a learner-driver was the same as other experienced drivers. ➢ The D’s lack of experience was irrelevant and as the way in which she drove fell below the required standard of care, she was liable. ➢ The court further stated that it would indeed be di8cult if courts had to take into account the different levels of experience of each D. 1. REASONABLENESS AND THINGS NATURALLY DANGEROUS: • Gov of Malaysia & Ors v Jumat bin Mahmud & Anor ➢ A pupil who was sat behind the P, pricked the P’s thigh with a pin. ➢ The P turned around and his eye came into contact with the sharp end of a pencil which the pupil was holding. ➢ The eye was badly injured and had to be removed. ➢ FC held that in considering whether or not the Ds were in breach of their duty of care, it was necessary to consider whether the risks of injury to the P were reasonably foreseeable. ➢ Assuming it was, the next question was whether the Ds had taken reasonable steps to protect the P against those risks.

NEGLIGENCE: BREACH OF DUTY OF CARE ➢ In this case, the court found that the particular form mistress did not expose the P to injury that was reasonably foreseeable. ➢ Further, constant vigilance in the classroom would not have prevented the injury sustained by the P. TYPES OF REASONABLE MAN 2. LEVEL OF INTELLIGENCE AND KNOWLEDGE • Hall v Brooklands Auto-Racing Club ➢ Greer LJ describes the reasonable man as ‘the man on the street’, or the ‘man on the Clapham Omnibus’, or the ‘man who takes the magazine at home and in the evening pushes the lawnmower in his shirt sleeves’. ➢ 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. ➢ If 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. 3. D HAS EXPERTISE IN A PARTICULAR FIELD ➢ He will be judged as against other persons who possess the same skills. • Phillips v William Whiteley ➢ 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, and not a competent surgeon. ➢ The jeweller in this case was found not liable when the P contracted a disease which she would not have contracted if her ears had been pierced by someone with medical skills. • Wilsher v Essex Area Health Authority ➢ A premature baby was given excess oxygen due to an error in monitoring its oxygen supply. ➢ A junior doctor inserted a catheter into a vein instead of an artery and this caused an inaccurate reading of the oxygen level. ➢ The doctor administered more oxygen to the baby with the consequence that the baby became blind. ➢ In a claim for negligence, the doctor raised the fact that he was a junior and inexperienced doctor and so the standard of care applicable to him ought to be standard of care of another doctor with the same level of limited experience. ➢ In a majority judgment, the CoA held that the standard of care should be related to the ‘post’ of the D and not his individual level of experience or competency and in this case, it was a person who filled the post of a skilled and competent doctor. ⇒ A subjective element → although the 'reasonable person' aspect of the test is objective, there is also a subjective element in the reference to the 'Defendant's circumstances' ❖ This subjective element brings into play issues such as whether the defendant was acting in an emergency. However, the courts will not generally take into account defendant's personal characteristics (see below) 4. D WITH AN INCAPACITY/INFIRMITY • Roberts v Ramsbottom (high standard) ➢ D was completely unaware that he had suffered a stroke before getting into his car. ➢ He then collided with and injured the P. ➢ The court held him liable despite his being unaware of his impaired consciousness at the time of the accident. • Mansfield v Weetabix Ltd (the courts should take this case as a guidance) ➢ D who was driving, went into a hypoglycaemic state induced by a malignancy. ➢ He was partially lost consciousness but was completely unaware of his condition, and got into a collision with the P ➢ CoA held that since the D was not and could not reasonably have been aware of his condition, this disability or infirmity must be taken into account in determining whether he had met objective standard of care.

NEGLIGENCE: BREACH OF DUTY OF CARE 5. THE CHILD DEFENDANT ⇒ Although the court do not usually take into account the personal characteristics of the defendant, they will take into account the age of the child - so this is an exception to the general rule • McHale v Watson ➢ 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. ➢ HC of Australia, applying the foresight and prudence of an ordinary boy of twelve, found the D not liable. • Mullin v Richards ➢ Two 15-year-old schoolgirls were fencing with plastic rulers during a mathematics lesson. ➢ One of the rulers broke and entered one of the girl’s eye and she became blind. ➢ Holding the D not liable, the court stated that a 15-year-old, unlike an adult, could not be expected to foresee the risk of her behaviour. ➢ Some degree of irresponsibility is expected of children playing together. 6. DRIVER OF A VEHICLE •

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Roberts v Ramsbottom: The court felt that he ought to have been aware that he was un>t to drive, and so the standard of care required was that of a skilled driver. Mansfield v Weetabix Ltd Wong Li Fatt William (an infant) v Haidawati bte Bolhen ➢ The court held that a driver must be in reasonable control of the vehicle he is driving at all times and if the driver knows or ought to know that the area in which he is driving is inhabited, the he must anticipate that he may be put in an emergency situation at any time while passing that area. ➢ This also means that the driver must be prepared to halt the vehicle in the event of such an emergency occurring.

7. THE PROFESSIONAL DEFENDANT (THE GENERAL STANDARD OF A SKILLED DEFENDANT) ⇒ ‘The Bolam Test’: “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill” - McNair J in Bolam v Friern Hospital Management Committee [1957] • In other words, where the defendant has a duty of care and has a particular skill, the determination of whether he/she has breached that duty of care is not 'the reasonable person' test but the 'Bolam test' i.e. the defendant must have met the standard of the ordinary skilled man exercising and professing to have that special skill • Facts of the case: ➢ P alleged negligence on 3 grounds: 1) D did not warn the P of the risks involved in an electro-convulsive treatment (ECT) 2) D did not give the P any relaxant before the shocks were given to him 3) D did not hold down the P’s body whilst the treatment was being administered ➢ Regard to the ground 3, there are 2 conflicting views, one view holding that during an ECT, the patient’s body must be held down, the other view was that that was not necessary. ➢ 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. ⇒ In Sidaway v Bethlem Royal Hospital Governors [1985], the court applied the Bolam test in the determination of whether a doctor was liable for negligence for not telling a patient of the 1% risk paraplegia if he went through with the surgery, which materialised. It was held that the doctor was not liable because he was not required to give an elaborate explanation of the risks • However, in the case of Chester v Afshar [2005], on similar facts to Sidaway, the court found that the doctor was liable for negligence because the court felt that the patient should be able to make an informed choice as to undertake the surgery: not being told of all the risks clearly undermined this informed choice ⇒ Note, however, Sidaway v Bethlem Royal Hospital Governors [1985] has NOT been overruled by the increase in importance of informed consent → BUT, it does demonstrate a move towards greater patient

NEGLIGENCE: BREACH OF DUTY OF CARE autonomy, so is something that all medical professionals should have in back of their minds ⇒ There is a fear that if Sidaway was overruled this may encourage the practice of defensive medicine i.e. doctors may fear doing anything in case they are sued, rather than acting in the best interest of the patient

APPLICATIONS OF BOLAM •

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Chin Keow v Government of Malaysia & Anor ➢ An amah was given a penicillin injection at a clinic. ➢ She died about an hour later. ➢ PC overturned the decision of FC and agree with the HC that the doctor had been negligent as it was expressly written on the patient’s card that she was allergic to penicillin. Elizabeth Choo v Government of Malaysia & Anor ➢ Raja Azlan Shah J stated that a professional will not be deemed to be negligent if he has taken steps that would normally be taken by others who are in the same position. Kow Nan Seng v Nagamah & Ors

7(A). A DIFFERENT TEST FOR THE MEDICAL PROFESSION IN CASES OF PROVISION OF INFORMATION • Rogers v Whitaker ➢ Mrs Whitaker became almost totally blind in her left eye as a result of a condition known as sympathetic ophthalmia, after a surgery conducted on her right eye. ➢ P’s allegation was grounded on the D’s failure to advise her of the risk which resulted in her condition. ➢ There was a 1:14000 chance of this condition developing in this case and the patient had repeatedly asked the doctor of possible complications, including the danger of unintended or accidental interference with her ‘good’ left eye. ➢ The doctor did not warn her of sympathetic ophthalmia as it was not a risk which came to his mind. ➢ The body of medical opinion prevailing at the time was that the risk ought to have been disclosed to her as if she had asked specifically if her good eye would be affected by the operation on her other eye. ➢ She did not ask this specific question. ➢ Thus, if Bolam had been applied there would have been no breach of duty of care. ➢ The court stated that informing the patient the truth, or answering the patient’s questions truthfully overrides any opinion or practice held by a respectable body of medical men. ➢ A more acceptable approach is to recognise and attach significance to the relevance of a patient’s questions. ➢ Principle: the duty of care imposed on a doctor is a single comprehensive duty covering all the ways in which a doctor exercises his skill and judgment, and extends to examination, diagnosis and treatment as well as provision of information to the patient. 7(B). THE BROADER IMPACT OF ROGERS CASE • Tan Ah Kau v The Government of Malaysia ➢ The court held that since the risk of paralysis in that case was real, the doctor was under a duty to warn the patient of that material risk, particularly if the patient, if warned of the risk, would have considered it to be significant. • Foo Fio Na v Dr Soo Fook Mun (full reception of Rogers’ case) ➢ P was injured when the care she was travelling in was involved in a collision. ➢ She was taken to the nearest hospital, the Assunta Hospital. ➢ P had dislocated her cervical vertebrae which caused much pain in her neck. ➢ The D surgeon performed the first of two surgeries. ➢ After the first surgery, P was paralysed and when medication failed to improve her condition, the D performed the second surgery. ➢ There was slight improvement but the P’s paralysis was permanent when she was discharged from the hospital some 9 months later. ➢ P claimed that the paralysis was caused by the first surgery and D had been negligent in the surgical procedure adopted during the surgery that caused her paralysis and the D was negligent in his failure to rectify the situation immediately after the first surgery.

NEGLIGENCE: BREACH OF DUTY OF CARE ➢ P further claimed that D failed to explain her the risk of paralysis and instead informed her that it was a minor procedure. ➢ FC held Bolam test is not applicable to determine the standard of care in relation to disclosure of information and risks. ➢ The medical practitioner has a duty to warn a mentally competent patient of risks to enable the patient to decide whether to proceed or decline it. 7(C). PRACTICE AND KNOWLEDGE AT THE TIME OF THE ALLEGED BREACH ⇒ Although the court do not usually take into account the personal characteristics of the defendant, they will take into account the date the defendant acquired some specific knowledge if relevant to the particular case - so this is an exception to the general rule ⇒ In other words, if when the incident occurred it was common practice to do one thing, but later evidence suggests that 'practice' is dangerous or bad, the court will take it into consideration that the 'practice' was common when the incident occurred. • Roe v Minister of Health [1954] ➢ P was paralysed from the waist down after an operation because the solution which was used for the required injection was mixed with phenol, another solution that was placed around the container containing the injection solution. ➢ Evidence showed the container was cracked, but that it could not have been detected according to the state of knowledge at that time. ➢ CoA found that the doctor knew of the consequences of a phenol injection, and he had examined the injection solution before giving the injection. ➢ Lord Denning held the doctor not negligent in not testing the phenol as possibility of cracks occurring in such a situation was only discovered in the medical field in 1951, whereas this incident took place in 1947. ➢ The standard of care must therefore be based on current medical knowledge at the, time of alleged breach, not at the time of the trial.

FACTORS RELEVANT TO THE STANDARD OF CARE 1) Magnitude of the risk 2) Practicability /cost of precautions to the D 3) The importance of the object to be attained 4) General and approved practice ⇒ In other words, these four things are taken into account to determine whether or not the defendant met the standard of care expected of them ⇒ Sometimes known as the risk test. ⇒ The court, having considered the facts and all the circumstances of a case, will pose the question: what is the possibility of harm or risk caused to the P as a result of the D’s conduct? ⇒ May be rephrased as follows: is it reasonably foreseeable that the D’s conduct will cause damage to the P? ⇒ If the answer is ‘yes’, then the D will be required to exercise a proportionate degree of care to avoid the harm from materialising.

1) MAGNITUDE OF THE RISK (a) Probability of the injury occurring • Bolton v Stone ➢ P was hit by a cricket ball which had been hit out of a cricket ground ➢ HoL held that the distance btw the place where the ball was hit to the edge of the field which was surrounded by a seven-foot wall made injury to the P rather remote. ➢ It was further held that although a reasonable man may foresee many risks, life would be inconvenient if precautionary measures are to be taken for all foreseeable risks. ➢ A person must only take reasonable steps against risks that may materialise. • Hilder v Associated Portland Cement Manufacturers Ltd ➢ P who was riding his motorcycle on the highway was killed when a football went onto the highway. ➢ The occupier of the land was found liable in negligence in allowing children to play football on his land, as the likelihood of injury to passer-by was much greater than in Bolton’s case

NEGLIGENCE: BREACH OF DUTY OF CARE

b) Seriousness of the injury ⇒ The more serious the potential consequences of the defendant's actions the more likely he/she will be liable for breaching his/her duty of care •

Paris v Stepney Borough Council ➢ P who was blind in one eye worked for the D and 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 became completely blind thereafter. ➢ HoL held that the employer had a duty to take reasonable care to ensure the safety of the working environment of his employees. ➢ If the D knew or ought to know that the risk of injury to the P is higher than usual, then he must take extra precautions to avoid the potential 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 that P.

2. PRACTICABILITY OR COST OF PRECAUTIONS TO THE DEFENDANT ⇒ 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. ⇒ If the defendant has done everything, he/she can to prevent an incident from occurring, for example, then he/she will probably not be found to have been negligent •

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Latimer v AEC ➢ D’s factory was Hooded due to heavy rain. ➢ The mixture of water and oil caused a part of the floor of the factory to be slippery and sawdust was placed over the slippery parts. ➢ Not all area was fully covered and P employee slipped and fell. ➢ P contended that the D should have shut the factory down. ➢ HoL held that the risk of injury was insufficient to warrant the shutting down of the factory. ➢ 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. Hamzah & Ors v Wan Hana/ bin Wan Ali ➢ P, who was a passenger on a train hopped o9 and injured himself befor...