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Breach of duty - Coggle Diagram
Breach of duty
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Standard of care and different classes of defendant:
standard of care is not the same for everyone as there are certain categories of people who are treated differently - these are children and medical professionals
Children:
- very little case law about duty of care owed by children and most of the cases involve situations where the child has been playing with the defendant
- existing law states that the standard of care owed depends on the age and experience of the child - set out in Mchale v Watson and approved in Mullin v Richards
in both cases it was stated that a child is not expected to have perceptions of risk that an adult would have - principle applied in Blake v Galloway concerning a 15yr old claimant whose eye had been injured when the defendant threw tree bark at him - court decided that in the context of rough play there is only a breach of duty where the conduct amounts to recklessness or a very high degree of carelessness
- strong policy reason behind setting a high threshold for children: social benefit - where children are involved in rough play there is the social benefit of allowing them to have fun without the worry of being sued for any harm hey may cause
- after 2006 s1 of compensation act 2006 invites court to consider when assessing the standard of care in negligence claim whether the defendant is engaged in a desirable activity which might be affected if liability were to be imposed on the defendant - rough play is likely to be regarded as a desirable activity because that is what children do
Medical experts/professionals:
- these professionals do not have to conform to the usual rules on breach of duty in negligence. actions are not misjudged alongside the reasonable man - instead they have to comply with test set down in Bolam v Friern Barnet Hospital Management Committee
according to this case the standard expected of the medical profession is that of a competent body of expert opinion
- this means that even if the smallest number of professionals agree, that will be enough to show whether or not there is liability
- De Fritas v O'Brian - only 11 out of a 1000 surgeons would have acted as the defendants did - but 11 surgeons were sufficient to be regarded as a competent body of medical opinion
- fact that surgeons disagree does not mean that there has been negligence - lord scarman in Maynard v West Midlands Regional Health Authority
- been argued that the bolam test allows the medical profession to close ranks to protect itself as it appears that it can set its own standard of care, unlike other people who are measured against the reasonable man. this in turn can undermine confidence in profession
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Breach of duty is the second element of negligence as defined by Lord Atkin in Donoghue v Stevenson
Breach of duty occurs where the party owing a duty of care falls below the standard of behaviour that is needed by the duty that is owed to claimant in question