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Breach of Duty, Lord Denning MR clearly recognises:
Thus we are, in…
Breach of Duty
An Objective Standard
Put simply (except for in a very few, limited, circumstances) the appropriate question is not ‘what could this particular defendant have done?’ but rather ‘what level of care and skill did the activity the defendant was undertaking require?’
Nettleship v Weston 1971 - the claimant had agreed to give the defendant driving lessons. Despite the defendants 'best efforts' the car crashed and the claimant sued in negligence. The Court of Appeal stated that The standard of care … is measured objectively by the care to be p. 217↵expected of an experienced, skilled and careful driver’ the standard of care is not dependant on the particular defendants characteristic.
Counterpoint: does the courts position strike a fair balance between the parties? - Corrective justice requires someone only to pay for the damage and harm that was their fault or neglect, but with this situation, it imposes liability without genuine fault.
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In nettleship and Robberts v Ramsbottom the court imposed liability, even when it was not been genuinely at fault.
This was not the same in the case of Mansfield v Weetabix LTD 1998 a few years later. Where the lorry driver had no ides that he suffered from a medical condition that caused him to crash into a shop. This case was differentiated on the fact that the defendant was no aware of the medical condition.
Children
In cases involving children, the standard of care applied is scaled according to age so that it becomes that which can be ‘objectively expected of a child of that age’ (Orchard v Lee [2009] at [9])
Orchard v Lee 2009 - A child will only be held liable in negligence if their conduct is careless to a very high degree or falls significantly outside the norm for a child of their age. In assessing whether this is the case, ‘the question is whether a reasonable 13-year-old boy, in the situation that [the defendant] was in, would have anticipated that some significant personal injury would result from his actions
Professionals
In Phillips v Willaim Whiteley - the court denied a claim of damages in respect of an ear infection as a result of a pericing, as a piercer does not require the same skills as a surgeon.
In contrast - Wright v Troy Lucas and George Rusz 2019 - an unqualified legal advisor is held to the same standard as a professional lawyer,
The Bolam Test
he 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 this particular art … Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view.
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The law makes no allowances for inexperience or for the fact that everyone must, to a certain extent, gain practical experience ‘on the job’. Thus in Wilsher a junior doctor was held to the standards of the more senior post they were occupying at the time, notwithstanding the fact that this was effectively part of their training
Bolitho v City and hackney health authority. This case was to mitigate agisnt the issue that just beacuse its common practice, it doesnt mean that it goes unchecked.
n the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. (Lord Browne-Wilkinson at 243)
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[I]t is not for the court to venture into a consideration of two contrary bodies of opinion and to decide the case on the basis of which, of the patient’s and the doctor’s expert medical opinion, it prefers … Once Bolam applies, the fact of differences in expert opinion cannot lead to a rejection of Bolam evidence.28
Materiality of risk
1) what risks assocaited with a opperation were or should have been known to the medical professional in question,.
2)
Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone [84]–[85]. (Duce at [33])
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‘whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’
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A test of Reasonableness
Donoghue and Stevens 1932 - 'you must take reasonable care to avoid acts or omissions which you can reasonably foresee would hurt your neighbour.'
The court compare the actions to that of a reasonable man. - Hazel v British Transport Commission 1958.
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The reasonable man test - should we take into consideration their religion, class, sex, gender, age and education?
The Feminist Critiques
One aspect to this argument is that the reasonable man argument is based off what most people would do and think, but this is incorrect as it is a conception conjured by judges embodying a standard set appropriated by them. - Women remain underrepresented
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Establishing Breach
the burden is on the claimant to establish on the balance of probabilities that is more likely than not that the defendants actions fell below the required standard of care.
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Lord Denning MR clearly recognises:
Thus we are, in this branch of the law, moving away from the concept: ‘No liability without fault’. We are beginning to apply the test: ‘On whom should the risk fall?’ Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her. (at 700)
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