Its a complete notes for breach (2nd element of negligence), structured in way easily understandable and to use as guidance for essays writing or problem question. Its included recent case and update. All you need to know about in breach is in one complete note. Further, this area of breach is test...
BREACH – Is the D in breach of that duty? Vowles v Evans Bolam case involving negligent treatment, it has been
Q1: Std of care expected of the D – Q of law, obj? COA recognised that a higher std of care would be expected applied to cases involving negligent treatment, diagnosis
from a professional rugby referee than from an amateur. and disclosure. However, over the year, the rest has lost
1. R/Man - Obj Std some of its influence notably in cases involving duty of
Blyth v Birmingham Waterworks 5. Professional Skills disclosure.
D’s conduct fell below the standard of care expected of him Bolam v Friern Hospital Management Committee
The std of ordinary skilled man exercising and professing Sidaway v Board of Governors of Bethlem Royal Hospital
(a) Exception - Subj Std: to have that particular skill. Hence P/man judge by his C underwent spinal surgery that carries a less than 1% risk
2. Children peers. of spinal damage, even if the surgery was properly
Mullin v Richards performed. The C was not informed of this risk, the risk
are to be judged by the standards of a reasonable child of Wilsher v Essex AHA materialised and the C suffered damage to her spinal cord.
the same age. Personal attributes and experience of the D are generally HOL held surgeon was not neg in failing to disclose the minor
disregard in neg claims, if doctor does not have the requisite risk of spinal damage. Bolam Test should be applied not
3. Illness degree of skill for the role in which they are acting, the only to diagnosis and treatment but disclosure of risk.
Roberts v Ramsbottom employer (ie. hospital) will be liable for putting the employee
driver who suffered a stoke at the wheel remained liable, (ie. doctor) in a position that was too advanced for their HOL held mental competent adult patient had the absolute
even if the driver was unaware of his medical conditions. abilities. Unless, the doctor missed key symptoms of patient right to refuse consent to medical treatment, regardless of
then he found to be in breach of duty. how irrational or detrimental that may be. However, where
Mansfield v Weetabix the patient has not asked as to the risk involved in
COA held Robert was wrongly decided on this point, 5.1. Medical Profession treatment, a doctor is not under a duty to voluntarily
although the decision could be supported on the alternative Bolam v Friern Hospital Management Committee disclose unsought information about any such risk. To
ground that the D had carried on driving when he felt C suffered from a mental illness and the doctor performed decide what risks the patient should be voluntarily warned
strange and ought to have known that he was unfit to drive. electro convulsive therapy (ECT) to treat the C’s mental having regard to the effect of the warning, as much an
Further, a driver who become unable to control a vehicle will illness, w/o the use of any relaxant drugs, restraint exercise of professional skill and judgement as any other
not be liable if he was not aware of the condition which equipment or manual control. There had been a risk of part of doctor’s comprehensive duty of care to the
suddenly manifests itself and disable the driver. fractures associated with the use of ECT and the C was not individual patient, and expect medical evidence on this
informed of this. During the treatment, the C suffered matter should be treated in just the same way
(b) Special Std - Obj and Subj Std: violent seizures, followed by multiple fractures. He brought
4. Sports and horse play an action against doctor for neg in treatment and failure to Dissenting Ld Scarman, doctor is under a duty to inform his
Wooldrige v Sumner disclose risk. Held A medical practitioner is not guilty of neg patient of the material risk inherent in the treatment save
a sportsman is only liable where he has been reckless with if he has acted in accordance with acceptable practice in exception circumstances.
regards to the safety of another. endorsed by a reasonable, respectable and responsible
school of thought within his profession. Ld Bridge, opinion that judge might in certain circumstances
Condon v Basi come to conclusion that disclosure of particular risk was so
the standard of care varies according to the level of Regardless of presence of opinions to contrary because obviously necessary to an informed choice on the part of
expertise of the player, although it remains objective. A there will always be genuine difference of opinion and the patient that no reasonably prudent medical man would
higher degree of care is expected from a professional than practice within any given profession, there is seldom one fail to make it.
an amateur. answer. Even judge prefer one opinion over the other but
this is not sufficient to establish negligence.
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