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Negligence: Breach of duty (part 1) - Coggle Diagram
Negligence: Breach of duty (part 1)
Standard of Care and the Defendant
Defendant's capacity - skills/experience:
The only SOC of a reasonable driver is
whether the actual driver is highly experienced, newly qualified or just a learner is immaterial
Nettleship v Weston [1971] CA:
Facts: D a learner driver went for her 1st lesson supervised by a friend C. D crashed the car into a lamppost and C was injured.
Held: CA held that even learner drivers must be judged against the
standard of a reasonably competent driver
. The inexperienced driver is not excused by this standard. Its also hard for courts to decide based on individual experience. C won damages subject to deduction for contributory negligence.
Contrast - Mansfield v Weetabix (1998):
Facts: Defendant who was driving went into a hypoglycaemic state due to lack of glucose in the brain. He was unaware of the effect on his driving and got into a collision with the claimant.
Held: CA held that SOC of a driver is obliged to show what is expected of a reasonably competent driver. But the driver was unaware and could not have reasonably known that his illness was the cause of the accident. Hence his action did not fall below the SOC required, claimant lost.
Defendant's capacity - Age:
Children fall into a special category. The SOC required of a child defendant is the foresight of a child of the same age
Mullin v Richards (1998):
Facts: Claimant and defendant were 15 year-old schoolgirls that were fencing with rulers when the plastic snapped and a piece went into the claimant's eye and lost sight.
Held: A 15 year-old could not have expected to foresee the risk of her behavior. Some degree of irresponsibility is expected of children who play together
Per Blyth v Birmingham Waterworks Co (1856): "A breach occurs where the defendant "fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or does something which a prudent and reasonable man would not do".
Reasonable Man Test:
An objective test in which the behavior of the defendant is compared with the behavior of an ordinary person in ordinary circumstance
In other words: What would would a reasonable man/woman have done in that situation have done in that situation?
Problems with the Test:
Problems don't come from ordinary situations involving ordinary people.
They come from situations involving involving people with special skills or qualifications
E.G. You cannot ask if a reasonable person would have done what a surgeon did.
You have to ask what a reasonable surgeon would have done?
The defendant is expected to have the same general knowledge and understanding of the risks as a reasonable person.
It doesn't matter if the defendant is more stupid than the reasonable person.
Glasgow Corp v Muir [1943]:
Facts: The defendant spilled hot tea on some children and scalded them. The issue is whether the defendant should have foreseen that injury would occur when he brought a big container of tea through the corridor of the premise.
Held: A reasonable man could have foreseen such an accident in the situation. Claimant distinguished between things that are naturally dangerous and those that are not.
Medical Negligence
Bolam v Friern Barnet Hospital Management Committee:
Facts: Claimant consented to undergo ECT but was not warned of the risk of fracture. During the treatment, he fractured his pelvic bone on each side.
Held: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Claimant lost.
Bolam's Test:
The
standard of the ordinary skilled man
exercising and professing to have that special skill
it is sufficient if he exercises that
ordinary skill of an ordinary competent man exercising that particular art
Test is applicable to other professions as well e.g engineers, architects
Can professionals be challenged? Bolitho v City & Hackney Health Authority [1997] HOL:
Facts: Claimant aged 2 suffered serious brain damage following respiratory failure. Several expert witnesses supported the doctor and on that note judge found that the doctor had not been negligent
Held: Doctor may be negligent even if the body of medical opinion is in his favor. He must show that the opinion has a logical basis
Treatment and clinical judgement - Whitehouse v Jordan [1981] 1 AER 267:
Facts: Defendant had delivered a baby using forceps. The baby became wedged and suffered asphyxia and brain damage. It was alleged that the defendant had pulled too long and too hard in attempting a forceps delivery before eventually performing a C-section
Held: Per Lord Denning - "While some errors may be completely consistent with the due exercise of professional skills, other acts. May be so glaringly below proper standard as to make a finding of negligence inevitable". Lord Denning confirmed that the Bolam test was still the appropriate test by which to measure standards of professional activity. Appeal dismissed.
Level of Expertise (Can the SOC be varied) - Wilsher v Essex Area Health Authority [1988] 1 AER 871:
Facts: A junior doctor mistakenly administered excess oxygen into an artery rather than a vein of a premature baby who eventually lost his sight.
Held: Per HoL - The SOC is not varied according to the level of expertise of a doctor as it would mean that the care of a patient was entitled to will depend on the experience of the doctor who treated them. This is unacceptable and negligence was held to have occurred in the case.
The
Move away from Bolam
per Lord Scarman's dissenting judgement in Sidaway held:
The Test should not apply to the issue of
informed consent
and that a doctor should have a duty to tell the patient of the material risk the treatment entails
With the medical aspect of advice by the doctor to the patient, the court and not medical judgement will determine if the doctor has breached the SOC in medical law
Consent - No Longer Bolam - Montgomery v Lanarkshire Health Board [2015] UKSC 11:
Facts: The obstetrician involved was aware of the risk of shoulder dystocia but chose not to discuss it with Mrs. Montgomery, who said she would have had a C-section if she knew the risks involved.
Held: SC held that Mrs. Montgomery had the right to be informed of the risk of shoulder dystocia. She also had the right to decide for herself if she was prepared to go forward with the surgery relative to the risks
The SC replaced the Test for consent with a test where the risks involved had to be:
assessed by reference not to a responsible body of opinion but by reference to a reasonable person in the patient's position
Doctors are now obliged to "reasonable care" to ensure that the patient is
aware
of any
material facts involved
in any recommended treatment and any reasonable alternative.
Foo Fio Na v Dr Soo Fook Mun [2007] 1 AMR 621:
Facts: Appellant suffered 2 dislocated vertebrae due to an accident. 1st Respondent is an orthopedic surgeon who treated the Appellant and 2nd Respondent was the hospital where she was warded. 1st Respondent performed an operation where he inserted a loop wire into the spinal cord.
Held: The applicable test in determining the SOC of a medical practitioner in relation to disclosure of information and risk is NOT the Bolam Test
Per Siti Normah Yaakob FCJ: "We are of the view that the Rogers v Whitaker test would be more appropriate and a viable test of this millennium (than) the Bolam test
Rogers v Whitaker [1992] HCA 58:
Facts: Mrs. Whitaker became almost totally blind in her left as a result of a condition (sympathetic opthalmia). Later surgery was conducted on her right eye (good eye). Surgery was not conducted negligently but the sight of her right eye did not improve.
The claimant's allegation regarded the defendant's failure to advise her on the risk of sympathetic ophalmia, which resulted in her condition.
Held:
The courts will adjudicate on what is the appropriate SOC after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".
Whitaker's Test:
To warn
a patient of the
material risk inherent
in the proposed treatment. A risk is material, in the circumstance of the particular case, a reasonable person in the patient's position,
if warned of the risk
will be likely to
attach significance
to it or if the medical practitioner is or should be reasonably aware that the particular patient if warned of the risk will be likely to attach significance to it
Kamalam A/P Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd & Anor [1996]:
Facts: Court found D1 and D2 liable for their failure to give efficient ambulance service at the material time and failure to admit Mr. D into the hospital earlier. The main question is whether it follows the SOC demanded by law.
Held: Following the decision in Rogers v Whitaker, decision will cover all the ways the doctor exercise his skill and judgement (extends to examination, diagnosis, treatment and provision of information to patient)
Zulhasmina