Seminar 4 - BREACH OF DUTY: THE STANDARD OF CARE PDF

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BREACH OF DUTY: THE STANDARD OF CARE...

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TORTS 2018-19 BREACH OF DUTY: THE STANDARD OF CARE Seminar Preparation: Read the relevant chapter on breach of duty/the standard of care from your text book. JL Montrose, ‘Is Negligence an Ethical or Sociological Concept?’ (1958) 21 Modern Law Review 259. Margaret Brazier and Jose Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Medical Law Review 85. Rachael Mulheron, ‘Legislating Dangerously: Bad Samaritans, Good Society and the Heroism Act 2015’ (2017) 80 Modern Law Review 88. (all available on uni of leeds library site) Bolton v Stone [1951] AC 850. Nettleship v Weston [1971] 2 QB 691. Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151. Dunnage v Randall [2016] QB 639. Answer the following questions and come prepared to discuss them in the seminar . 1.

Aya is recovering from influenza when she sneezes violently and repeatedly when driving and loses control of her car. She hits and injuries Bilal, a child aged 6, who has just run into the road near his school. Aya sustains a deep gash on her arm. Carol, a qualified first aider, tries to help by bandaging the gash but she straps the arm so tightly that she severely restricts the blood supply. Carol manages to drive Aya to hospital but, having only recently passed her driving test, clips Dylan’s car in the hospital car park when trying to park and scratches the paintwork. At the hospital, Aya is seen by Eve, a junior doctor who has been on duty for 36 hours. She fails to notice that Aya’s arm is too tightly bandaged and sends her home, telling her to return the next morning. Aya develops gangrene in the arm which has to be amputated.

Advise the parties whether they have met the standard of care(focus on breach not causation) in negligence. to decide wheather she was in breach,we have to consider 3 condiitons: owe them a duty, they breached it and they were a factual and legal cause in order to see weather a duty was breached: objective test. we have to establish what the relevant standard is first. Aya liability to Bilal: standard here is the ordinary reasonabel and skillful driver. once weve got this standard you have to ask, applying this stanard did aya meet that standard. Roberts case:--> D negligent, because he didnt drive with level of skill to be expected of a reaonsbaly careful driver, iee reasonable careful driver wouoldnt have collided with cl’s parker car. he was negligent because as a rwuslt of earlier collissions he should have known before he jit cl car that he wasnt in a fit state to drive. judge says we ignore the fact that he was sufferring after effects of a stroke. in mansfield v weetabix- → coa here said that its wrong to say lorry driver was negigent because he had no reason for susectng he may have had this attack and once this attack had started there was noting he could reasonably do to stop his lorry doing what it did. the outcome in roberts was correct they said, but judge in roberts had only been 50% correct. coa- judge in mansflied had been correct saying tha he was negligent because he should have expected and antiticpated but he wasnt negigent when he crashed into the car he couldnt control his car due to effects of stroke. diff: in mansfield lorry driver didnt have initial warning that something was wrong. in mansfield coa is adopting an abjective approach taking into account D situation. Randall case-. takes stricter appraoch than mansfield. medical eviedence that someone i uncles position would have felt compelled to do what he did, but that he nevertheless knew what he was doing. coa: uncle was negligent. where D is sufferring from some disability/illness/medical conditon for purposes of breach of duty you ignore this. its only where the D does nothing, that he escapes liability ((e..g d has knife in his hand cl grabs the d hand and forces him to stab bystander, here the d does it but in practice his not resposnible for this., so here if someone grabbedd aya’s steering wheel

then aya wouldnt be responsible, but that aside we ignore any medical condition, which therefore applies here). this case is clearer than roberts and mansfield- weather its right approah is different question, because effcet in a case like this is the courts aply a purely objective approach and thismeans in certain circumatnces courts are applying strict liability. the fcat liability is strict, for example in car accidents isnt tha much of an issue, because any liability is met my insurance cover, and theres no stigma in being held repsonsible for a car accident. but how about where the D has a disability, is it right that the law imposes strict liability on such individuals? so Aya is in breach of duty, becausefor purposes of rleevant standards of care we ifgnore the fact she is sifferring fom inluenza and sneezes violently, what matters its her hands on sterring wheel, her foot on accelrator, shes the one who drives into bilal. is bilal in breach of duty? no, because bilal is a child, in randall court said chidrenc comprise the sole exception to the reasonabel standard. where its a chidl we aks what woudld reasonable child of that child have done. wasnt negligent for a 6 year old to run out, or appreciate the dangers. law does make allowance for children, but not for disabled. possible school andor parents wouldve owed a duty and standard of care wouldve bene that of reasonable school/parent in charge of the child.

Aya and carol: she volunteers to help do we judge her against the standard of a reasonable person or reasonable qualified first aider? where a person professes to have special skills they held to a level of a person having that skill. carol here isn't doing a job, she did a favour. she doesn't ask her are you qualified to put this bandage on me? nevertheless standard would be of that of a first aider ( cattley-st john ambulance volunteers owe a standard of care same as that of qualified first aiders)- however you could argue in this case they hold themselves as having special skills, due to uniform etc, Carol doesn't, nevertheless she is likely to still be held on same level as qualified first aider. arbitrary. however one justification for high standard if you know you have that high skills and standard, there's no duty to intervene. carol doesnt have to help aya, but if she does intervene estandrd of acre expected of her is that of someone else having the qualification of her that she actually has. Carol and Dylans: here standard to be expected is reasonable, experienced driver → cant take account of circumstances in this scenario so in an emergency situation reasonable driver may take more risks than in a non emergency scenario e..g if you've taken someone to hospital having a heart attack, if its save to go through a red light in probs wouldnt be negligent. here it doesn't seem like sufficient crisis situation that would excuse her from hitting wouldn't a parked car. therefore she would be negligent. Aya and Eve: here standard of care is of a reasonable, experienced and skilful junior doctor. in deciding whether shes met this standard one would apply the Bolam test, so strictly question is did she act in a way that a reasonable body of doctors would regard as reasonable? here, a junior doctor ought to realise the bandage is too tight, even though she's been working for 36 hours- that's something personal to her she's tired. you have to take the persona out the situation. there is an alternative approach that could be adopted. one could say one could take into account the fact that she's tired, that doesn't mean patients won't be able to be successful claim because instead of alleging its the junior doctor whos been working for so many hours, the hospital in negligent who have a system for doctors working for so long. ( difficulty in suing doctors however as they can rely on the fact that they don't have much money. wilsher- causation lectures~ coa- discussion and disagreement as to a standard of care of a junior doctor. held registrar was negligent he ought to have spotted mistake committed by a junior doctor. a junior doctor wasn't negligent, the majority said you ignore the fact his inexperienced that's personal characteristics . )

2.

Ruth owns and runs a funeral home called Fisher & Sons. She has employed Nate as a mortician since 2007. Ruth has always instructed the morticians at Fisher & Sons to use a chemical called ‘Vibranium’ in the embalming process. Vibranium is much cheaper and effective at preserving cadavers than other chemicals on the market. However, scientific research in 2012 revealed that prolonged exposure to Vibranium can cause lung cancer. Although rival products do not carry this risk, many funeral homes prefer to use Vibranium and so Ruth instructs the morticians to continue using it. Nate has since developed lung cancer.

80,74,65,62,58,52, Advise Ruth as to how the court will determine whether she has breached her duty of care.

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so first you establish the standard of care(who you're preparing the D with) second stage- has the D met the standard- so you need too establish what reasonable employer would have done. the focus of this question. need to bear in mind: likelihood of harm( bolton v stone) seriousness of harm (harriss and perry), the utility of activity carried out ( tomlinson and c- man dives into lake case- hol one has to bear in mind that the owner of the lake is making lake available to everyone), the effectiveness of cost of precaution- how easy would it have been to eliminate the risks (waggonmound case- illustrates how these factors interrelate. her likelihood of harm was v small, but he was still negligent because there was no utility in what he was doing, so risks even though small, could have been eliminated quite easily, and he had no reason to be doing what he was doing in the first place) . a further factor that relevant, especially to employers, is the state of knowledge/common practice. rleevant iwht employers where complaint relates to indistrial disease or injury. case of balancing competing risks and demands before 2012 ruth not negligent in exposing nate to vibranium, because it wasn't foreseeable that by doing so would suffer harm, but once ruth becomes aware of the risk, shes negligent, a reasonable employer wouldn't continue to expose knowing the risks involved and knwoing that a safer alternative was available.

3.

To what extent have the Compensation Act 2003 and the Social Action, Responsibility and Heroism Act 2015 changed the common law approach to breach of duty?

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compensation act s1- says that in deciding weather D is in breach of duty, a court may take into account whether a finding of negligence would prevent a desirable activity…….. exactly what hol did in Tomlinson, so it adds nothing to the existing law 2015 act- says court must have regard, as opposed to May. but doesn't really change what court do already take into account each of these elements. mulheron article- suggests act has brought about dangerous change in lawyou won’t get a question like this in the exam.

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4.

Critically discuss the extent to which the courts are overly deferential to the medical properhapsfession when assessing whether doctors have met the standard of care.

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bolan test discuss- too generous to doctors. a body of opinion that agrees with them, you could say in practice not difficult to find an expert who would agree with that. criticisms0 can be seen as a little unfair in that in q ur asking if doc was at fault, and prehaps if he was doing what others may have done then his not at fault. furthermore, bolan test- establishing breach is impossibly difficult, no right or wrong answer. f b and rana- 2017 case- parents took child to a&e in early hours of morning junior doctor saw child and discharged the child. turned out child had meningitis, by time child got back to hospital, meningitis has worsened and causes perm disability. judge held doctor had not been negligent. coa disagreed. duty to warn- mongomery case- preg womon, diabetic, and of small stature for such women there's a small but known risk of birth complication. one way to avoid this is to have a c section. here doctor didn't offer women this chance because he thought it wasn't in the mother's best interest, because mother’s do not recognise the inherent risks in a c section.normla delivery is safer. SC- doctor was negligent, she should have offered mother this chance because when it comes to choice of treatments risks, doc duty is to inform patient so the patient can decide.

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if you got a pq in exam, you can have one which requires you to discuss everything or one that focuses on just individual elements....