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Summary Seminar Notes on Breach of Duty of Care
Detailed Seminar Notes on Breach of Duty of Care, with coverage of strengths and limitations of the Bolam test
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BUSN5016 SEMINAR WORKSHEETWEEK 27: Breach of the Duty of Care
Reading:
In preparation for this Seminar session, you should read the following textbook:
¡ Dua S.K. & Turner C. (2019); Unlocking Torts, 5th Edition. Routledge, Taylor &
Francis Group; London and New York. Chapter 3 – especially for this seminar
OR any of the following:
Roach L., (2016), Card and James’ Business Law, Fourth Edition. Oxford University
Press.
Marson J. & Ferris K., (2020), Business Law, Sixth Edition. Oxford University Press
Any other related material containing the topic – The Tort of Negligence on
Breach of the Duty of Care
PLEASE NOTE: You are advised to prepare in advance of this seminar session by addressing the
questions for discussion. Wherever possible, you should identify any case laws appropriate to the
questions.
Seminar Questions :
, Consider how the courts would determine whether there was a breach in the following
situations:
1. Harry is a gynaecologist who when called by midwives because of a difficult birth
nevertheless persuades the midwives to continue. The baby dies during delivery.
Certain doctors suggest that only a Caesarean section delivery was appropriate in
the case but Harold states that, even if he had attended, he would not have carried
out a Caesarean and other doctors say that they would have reacted similarly.
- Causation is proven as the baby died as a result of doctor’s actions, definitely a
duty of care.
- This relates to the appropriate measure of standard of care against a competent
professional body of medical opinion.
- Vicarious Liability: employer is responsible for the employee; hospital would be
sued not Harry.
Key Case Law; Bolam vs Friern Hospital Management Committee (1957)
- McNair J established the standard of care appropriate to doctors.
- In the Bolam case, Bolan’s colleagues (other doctors) would have reacted similarly,
doctor acted in accordance to competent body; no negligence
2. During a forceps delivery of Martina’s baby, Harry, an inexperienced doctor who
has never performed a forceps delivery before, damages the baby’s head so badly
that the baby suffers almost total brain damage and dies.
- Alternatively, if the forceps were used and there was less than a 50% chance of the
baby surviving; the doctor will not be negligent.
- Law relates to the standard of care for medical professionals.
- Relates to the ‘level of expertise’ element of the Bolam Test
- Standard of Care is not reduced because of a doctor’s lack of experience.
- Inexperienced/Junior doctor must exercise the same degree of skill as
expected from an experienced doctor.
Key Case; Wilsher vs Essex Area Health Authority (1988)
Junior doctor administered excess oxygen; baby found nearly blind
Held; House of Lords rejected health authority argument standard of care
should be reduced due to inexperience.
If accepted, would mean care a patient is entitled to depends on doctor’s
level of experience;
Decision; Breach of a Duty of Care, fell below expected standard of care,
Inexperienced doctor found negligent
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