Breach of Duty tuto - tutorial BOD PDF

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Breach of DutyQuestion 1In the case of Blyth v Birmingham Waterworks Co , negligence is defined as the omission to do something which is a reasonable man would do or would not do. A breach of the duty will be determined by the reasonable man test. The question that will be asked is would a reasonabl...

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Breach of Duty Question 1 In the case of Blyth v Birmingham Waterworks Co, negligence is defined as the omission to do something which is a reasonable man would do or would not do. A breach of the duty will be determined by the reasonable man test. The question that will be asked is would a reasonable man have acted as the defendant have done if the reasonable man faced with the same circumstances as the defendant. However, the standard of the reasonable man is varied according to the circumstances. There are flexibilities in the meaning of ‘reasonableness’. In the case of Glascow Corporation v Muir, it was held that 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. If the object that give rise to negligence is naturally dangerous, it is more likely that the liability will be imposed. In the case of Carmarthenshire Country Council v Lewis, the defendant was held liable because of the failure to ensure that a school compound was secure and children could not easily wander onto the nearby road. This case was distinguished from Chen Soon Lee v Chong Voon Pin, the defendant was not held liable because the school had taken all the reasonably necessary steps to safeguard the safety of children. Next, the standard of reasonable man based on the level of negligence and knowledge. In the case of Hall v Brooklands Auto Racing Club, it was held that the defendant’s action must conform to the criteria of an expected person of normal intelligence. If the defendant is of higher intelligence than the reasonable man, the standard which his conduct is measured remains of that reasonable man. However, if the defendant by virtue of his status is deemed to possess particular knowledge, the standard of care applicable to him is that of the reasonable man in that position. Furthermore, a person professes to have special skill or expertise, he will be judged as against other who possess the same skill. In the case of Phillips v William Whiteley, the defendant was held not liable. 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 that of a competent surgeon. When a person is registered under the Medical Act 1971, the standard of care and skill required of him is at with the other medical practitioner. However, a higher standard of care might be imposed even though a person does not profess higher skills. In the case of Nettleship v Weston, the court held that a learned driver must drive in manner as a driver of skill, experience and care. The defendant’s incompetent best is insufficient. In the case of Wilsher v Essex Area Health Authority, it was held that the standard of care should be related to the position of the defendant and not his individual level of experience or competency. If a person represents himself as having the skill and experience which he doesn’t have, the standard of care which he claims will be expected from him. In the case of Chaudhry v Prabhaker, since the defendant had chosen to be the agent and take on the particular task of recommending a car to the plaintiff, although he was not an expert, he was expected to have sufficient degree of knowledge. Next is the defendant with an incapacity or infirmity. In the case of Roberts v Ramsbottom, the defendant was held liable because he continued to drive after the first crash and subsequently involved in a collision resulting injury to the plaintiff. He will not liable only if his actions were entirely beyond his control. This case was distinguished from Mansfield v Weetabix Ltd, it was held that since

the defendant was not and could not reasonably have been aware of his condition, it is to be taken into account to determine whether he has met the objective standard of care, thus he was not liable. Moreover, the standard of reasonableness is different when the defendant is a child. The standard required for a child defendant is at the foresight of a child of the same age. In the case of McHale v Watson, the defendant aged 12, threw a piece of wielding rod which had been sharpened at one end and eventually hit the plaintiff. The court held that he was not liable when applying the foresight and prudence of an ordinary boy of 12. Besides that, when the defendant is a driver of vehicle, it will be test differently. In Ho Kiong Chan v Paipet, it was held that a driver should always anticipate the possible presence of others on the road and should always be able to stop within the range of his permitted vision. Lastly, the professional defendant. The person who professes to have special skill will be compared to the standard of the professional. In the case of Bolam v Friern Hospital Management Committee, it was held that negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one of more perfectly proper standards, if he conforms with one of those standards, he’s not negligent.

Question 2 There must be a balance between the degree or magnitude of the risk and the required level of responsibility on the part of the defendant in order to prove any breach of duty of care. One is only required to take precautionary measures against foreseeable and probable damage or injury. The required test is known as the risk test. The court will ask question the defendant whether it is reasonably foreseeable that the defendant’s conduct will cause damage to the plaintiff. There are 4 factors to assess the risk. Firstly, the magnitude of the risk. The degree of care required by the defendant must be weighed against the magnitude of risk or the degree of risk created by the defendant’s conduct. There are two factors divided under the magnitude of the risk. The first one is the probability of injury occurring. In the case of Bolton v Stone, the Plaintiff as hit by a cricket ball. The ball was only struck out of the ground 6 times in 28 years. The distance between the place where the ball was hit and the edge of the field was surrounded by a 7-foot wall, the injury was rather remote, therefore the defendant is not liable. It is distinguished form the case of Miller v Jackson. The cricket balls were hit out of the fence of the cricket field about 8-9 times per season, the plaintiff’s property had been damaged several times. Although there was a high fence surrounding the field, there was only short distance between the fence and the place where the ball was hit, thus there is probability of the injury. The precautionary measures adopted by the defendant were insufficient to overcome the risk of injury. The court also will have to consider the degree of subjectivity in accessing the probability of the damage occurred. In the case of Susan Cheah v Maybank Finance, the strong room of the def’s premise where a safe deposit boxes were located were broke in. The court held that the def was found to have acted below reasonable standard of care by not installing an advance security system in their premises since his services involving a huge amount of money. There is a probability of the loss to take place. The next factor is the seriousness of injury. In Paris v Stepney Borough Council. The plaintiff, who was blind in one eye became totally blind when a piece of metal hit his good eye when he was

working because goggles was not provided. His working condition has risk of injury to the eyes. If the defendant knew or ought to know that the risk of injury to the plaintiff is higher than usual, he must take extra precautions to avoid the potential injury. In the case of Haley v LEB, any authority which conducts repair works on highway should foresee that blind persons also uses the highway. If the defendant has actual knowledge of the circumstances of the plaintiff and the defendant has a duty to protect the welfare of the plaintiff, the measure of care taken must be proportionate to the individual needs of the plaintiff. If there is no precaution take on the part of the defendant, the plaintiff will suffer a serious injury. In Johnstone v Bloomsbury Health Authority, a doctor was required to work 40 hours per week and to be available for overtime up to 48 hours per week. The plaintiff claimed that he was deprived of sleep, his health was damaged, his patient’s safety was at risk and he suffered from stress and depression. Thus, the defendant is liable. The next factor is practicability of precautions. The risk must be measured against the precaution that needs to be taken. In Latimer v AEC, the defendant’s factory was flooded. The mixture of water and oil caused a part of the floor to be very slippery and sawdust was placed on it. Not all the slippery area was fully covered. The plaintiff employee slipped and fell. However, risk of injury was insufficient to warrant the shutting down of the factory. In Knight v Home Office, a mentally disturbed prisoner has suicidal tendencies despite being observed every 15 min by the prison officers. The defendant argued that he lacked of resources to provide same level of staffing as in a private psychiatric prison hospital. However, no funds at all is not a valid defence. In the case of Hamzah v Wan Hanafi Wan Ali-Not liable. The plaintiff hopped off the train and injured himself before the train fully stopped. There were written notices and oral warnings by the defendant that passengers were not to stand near the train doors or to jump off before the trains fully stopped. Train service is a cheap form of transport and if it were to take extra precautionary measures, will be very high cost The third factor is the importance of the object to be attained. Social importance or utility of the defendant’s actions allow him to incur risk of injury. For example, in the case of Daborn v Bath Tramways Motor Co Ltd, the defendant was driving a car which was used as an ambulance when an accident occurred. The defendant is not liable because the social importance of the defendant’s act outweighed the importance of his duty of care to other. However, it doesn’t mean that every risk will be justified for the purpose of saving life. In Watt v Hertfordshire County Council, the plaintiff was a fireman who was rushing to save a woman who was trapped under a lorry. The fire-engine which usually carried the jack was unavailable and so the jack was brought onto a normal fire-engine. On the way, the jack fell and hurt the plaintiff. If the object involves saving of another’s life, the existence of a high risk may still absorb the defendant’s possible liability. The last factor is general and approved practice. The general rule is that, if a defendant has acted in accordance with the common practice of those similarly engaged in the activity, it is not negligent However, sometimes, conduct that constitutes a general practice of a particular group of persons will still be considered negligent. If there are few courses of action that may be taken and the defendant chooses one of them, it is not necessarily negligent. In General Cleaning Contractors v Christmas, the plaintiff window cleaner was cleaning a window 27 feet above the ground and fell from the ledge on the window and injured himself. Even though standing on the window ledge was a common practice for window cleaners, this was a dangerous practice and the defendant as the employer was liable for not providing a safer system of work. Even if an act is a general and common practice, liability will still be imposed if the act is dangerous and gives rise to considerable degree of risk of injury. In the case of Aik Bee Sawmill v Mun Kum Chow, the plaintiff did not use a crossbar to life planks onto a lorry and the planks fell onto him. General practice was that a crossbar would normally be used to lift

the planks. The plaintiff was never taught how to use the crossbar. Nature of job is dangerous. The defendant did not take extra precautions when instructing a dangerous job, he is liable if the worker suffers injury. The defendant may act more than what a reasonable man would do but not less. These are 4 factors in determining the concept of risk in any action for breach of duty.

Question 3 i) - Bolam v Friern Hospital Management Committee Facts: The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug. The issue in this case was how to assess the standard of care imposed on a professional defendant where a substantial portion of professionals opposed a particular practice, while others did not. Judgement: The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable. McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. If this is established, it does not matter that there are others with expertise who would disagree with the practice. As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach. - Rogers v Whitaker Facts: Mrs Whitaker (the Respondent) had been nearly blind in her right eye since age 9. In 1983, at age 47, after a routine eye check-up she was referred to the appellant for possible surgery. The Appellant, Dr Rogers, advised her that he could operate on her right eye to remove scar tissue, to improve its appearance & possibly restore significant sight to that eye as well as assisting in the prevention of glaucoma. Following the operation: there was no improvement in her right eye and R developed inflammation & sympathetic ophthalmia in left eye, which led to complete loss of sight in the left eye and thus almost total blindness. The Appellant had not advised the R of this risk. The issue in this case is whether the doctor’s failure to advise and warn the patient of the risks inherent in the operation constitute a breach of duty of care Judgement: The High Court stated that the patient should be told of any material risk inherent in the treatment. A material risk is one to which a reasonable person in the patient’s condition would be likely to attach significance; and to which the healthcarer knows (or ought to know) the particular patient would be likely to attach significance; and about which questions asked by the patient reveal his or her concern. The court also established that the fact that a person does not insist on information being provided does not reduce the health carer’s duty (or client’s right) that is be provided. This means that health carers must be careful to take account of factors associated with the special needs of clients, “be they wishes, anxieties or beliefs”. Justice Gaudron stated that where no specific inquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the client; this requires the health carer to consider what they ought to anticipate as this particular client’ needs, and/or wishes. For example, where the client is a

professional player of a musical instrument, one could argue that the health carer ought to anticipate that he or she would have a particular interest in any risk or harm to the hands or fingers.

- Foo Fio Na v Dr Soo Fook Moon Fact: The appellant was a front seat passenger in a car that crashed into a tree on the night of the 11 of July 1982. The accident happened near Assunta Hospital where the appellant was brought to and warded for several injuries. The most serious injury suffered by the appellant was a closed dislocation of C4 and C5 vertebrae with bilaterally locked facets. It caused the appellant to suffer pain to her neck each time she moved her head. The doctor on duty, Dr. Celine Pereira gave her initial treatment by placing a cervical collar around it. After several initial treatments failed to reduce the dislocation of the cervical vertebrae, Dr. Soo Fook Mun, the first respondent performed the first operation to place the dislocated vertebrae into their original positions by inserting a loop of wire to stabilize the spinal cord after moving the dislocated vertebrae into the normal positions. Nevertheless, the operation failed and the appellant became paralysed. The first respondent called Dr. Mohandas, a neurosurgeon who confirmed that the loop of wire had put pressure on the spinal cord and is the cause of the paralysis. A second operation was performed by the first respondent to remove the wire loop but the appellant continued to be paralyzed until today. The appellant sued the respondents for medical negligence. Judgement: The court held that the Bolam Test is not to be applied in cases of medical negligence but the Rogers v Whitaker test is the more appropriate test. Under the Rogers v Whitaker test, the standard of care is not solely determined by the practice of an ordinary skilled person exercising and professing to have that special skills. In other words, the opinion of a responsible body of opinion in the medical profession is not conclusive in determining the practice of a particular doctor. As such, this test provides that the court has to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life. By applying the principle in Rogers v Whitakers, the court is not automatically bound by evidence as to the practice of the medical profession but the court can question the practitioner in order to scrutinize and ensure that the standard set by law is followed - Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital Fact: The plaintiff suffered from persistent pain in the neck and shoulders, a surgeon employed by the hospital, who has been advising the plaintiff for a number of years, advised her to undergo an operation on her spinal column to relieve the pain. He informed her the possibility of disturbing a nerve root, but did not informed her of the possibility of damage in spinal cord. The plaintiff suffered injury to the spinal cord which resulted in severe disablement. Judgement: 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 failing 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. The judge said that Damage is the gist of the action of negligence. Dissenting judgement in Sidaway: •

His lordship mentioned that the patient’s right to make his own decision may be seen as a basic human righ...