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DUTY OF CARE, REQTUIREMENTS FOR TORT OF NEGLIGENCE - Coggle Diagram
DUTY OF CARE
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2. BREACH OF DUTY
STANDARD OF CAREWhen determining if defendant has breached their duty of care, must establish standard of care expected of defendant + if they have fallen below itObjective test = reasonable man standard carrying out the act in those circumstances NOT of the actor
- Higher for those carrying out acts because they have special skills
Standard is lowered for:
- Children = reasonable child of the defendant’s age carrying out that act
- Illness / disability = if defendant is unaware of illness / disability at time of breach > standard is lowered
ESTABLISHING BREACHHas defendant fallen below standard of care?Factors to consider + balance:
- Likelihood of harm = more likely someone is to get injured > more likely that there is breach
- Magnitude of harm = if injury is serious > more care needed
- Practicality of precautions = cost + practicalities are balanced with greatness of risk
- Benefit of the defendant’s conduct = if defendant takes risk with aim of protecting life / property > may be justified BUT not blanket exemption for all emergency services
- Common practice = If defendant acted in accordance with common practice in field > may escape liability BUT may be found to be negligent (lower expertise = lower weight to practice)
- State of the art defence = defendant’s actions assessed against knowledge and/or accepted practice in profession at time of breach.
- Sport = risks relating to game may be justified unless they are reckless
Burden on claimant to prove defendant breached duty of care on balance of probabilities
EXCEPTION of res ipsa loquitur(‘the facts speak for themselves’) IF only plausible explanation for claimant’s injuries is negligence by defendant so defendant has to show they are not negligent
Tort of negligence
Negligence = breach of legal duty to take care by defendant causing loss / damage to claimantElements of negligence claim
- Loss or damage = Physical injury / Psychiatric harm / Property damage / Pure or Consequential economic loss
- Duty = existence of a duty of care
- Breach = Breach of duty
- Causation = breach caused the damage
- Remoteness = damage suffered was reasonably foreseeable
- Defences
Must be proved on balance of probabilities
Test to establish if duty of care is owed1. Is there a precedent that established duty of care?
- Drivers / doctors
YES = apply precedent
NO = go to step 2
2. Apply the Caparo test
a. Foreseeability of harm = objective test > what reasonable person would be expected to foreseeb. Relationship of sufficient proximity between claimant and defendantc. Must be fair + just + reasonable to impose a duty = look at authorities AND consider Floodgates / Insurance / Crushing liability / Deterrence / Maintenance of high standards / Defensive practices
- Law is developed incrementally
LIABILITY FOR OMISSIONS
No duty is imposed on failure to act (omission) BUT only for causing / injury / damages
EXCEPTIONS to this
Test to establish liability for omissions1. Is there a precedent that established duty of care for omission?
YES = apply precedent
NO = go to step 2
- Apply Smith test = duty of care is imposed for omission if there is:
a. Statutory duty = statute imposes requirement to act so failure to do so > liabilityb. Contractual duty = person fails to perform contractual obligations to claimant c. Defendant has sufficient control over the claimant = law imposes positive duty on defendant to act (parent with child)d. Defendant assumes responsibility for claimant = duty of care imposed on defendant if in charge of claimant's welfare (parent / teacher)e. Defendant creates the risk = risk created through omission > duty imposed to mitigate danger
Omissions and the emergency services
Ambulance = duty of care to respond w/in reasonable time
Fire brigade = no duty of care to attend a fire but if they do > owe a duty not to make the situation worse by doing something
Police = no duty of care to respond to emergency calls
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PROFESSIONAL NEGLIGENCE
Bolam Test = no breach if defendant acted in accordance with standard of reasonable professional in that field BUT common practice might be negligentStandard = accepted as proper by reasonable body (qualified not majority) and must have legal basis State of the art defence
- Defendant’s actions assessed against knowledge in profession at time of breach
- Doctors must keep updated with discoveries
Failure to advise in relation to risksWhen considering if medical professional is in breach of duty for failure to warn of risks of procedures > Bolam Test does NOT applyTEST is = under duty to take reasonable care to ensure that patient is aware of any material risks involved in recommended treatment
Material risk = one which reasonable person in the patient's position/ doctor knows patient would likely attach significance to When considering if medical professional took reasonable care to advise patient of any reasonable alternative treatments > Bolam Test DOES apply
- Doctors could agree with doctor's proposed treatment even if unreadable = doctor will not be negligent
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