5498809
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Mind Map by Jamie Roberts, updated more than 1 year ago
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Created by Jamie Roberts
over 8 years ago
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Breach & Causation
- Breach (Essay)
- 1. Introduction
- Breach of duty in negligence liability may be found to exist where the
defendant fails to meet the standard of care required by law. Once it has
been established that the defendant owed the claimant a duty of care, the
claimant must also demonstrate that the defendant was in breach of duty.
- The Standard of Care is tested OBJECTIVELY, this means that it
fails to take into account any of the characteristics that the
claimant possesses
- The courts often impose the test of the
reason man for the purpose of
objectivity
- Vaughan v Menlove
- The defendant's haystack caught
fire due to poor ventilation. The
defendant had been warned on
numerous occasions that this
would happen if he left the
haystack. The defendant argued
he had used his best judgment
and did not foresee a risk of fire.
The court held his best judgment
was not enough. He was to be
judged by the standard of a
reasonable man.
- The defendant's haystack caught
fire due to poor ventilation. The
defendant had been warned on
numerous occasions that this
would happen if he left the
haystack. The defendant argued
he had used his best judgment
and did not foresee a risk of fire.
The court held his best judgment
was not enough. He was to be
judged by the standard of a
reasonable man.
- Vaughan v Menlove
- The courts often impose the test of the
reason man for the purpose of
objectivity
- The Standard of Care is tested OBJECTIVELY, this means that it
fails to take into account any of the characteristics that the
claimant possesses
- Breach of duty in negligence liability may be found to exist where the
defendant fails to meet the standard of care required by law. Once it has
been established that the defendant owed the claimant a duty of care, the
claimant must also demonstrate that the defendant was in breach of duty.
- 1. Introduction
- Causation (Problem Question)
- Will be based around problems it determining causeation
- Barnett v Chelsea & Kensington Hospital
- The 'But For' Test
- However as there is multiple issues of causation, the but for test
will not suffice
- Where there exist two or more causes which operate concurrently it may be factually impossible to
determine which one was the cause. This has proved problematic not least because it is the claimant's
responsibility to establish which one was the cause. On general principles the burden of proving this is
on the balance of probabilities ie the claimant has to demonstrate that there is more than a 50%
likelihood of the cause being the breach of duty of the defendant.
- 1. McGhee v National Coal Board
- The employer asked him to work
around bricks which exposed
him to the dust. The employer
failed to install showers within
the establishment and the
claimant had to cycle home
covered in brick dust daily. The
claimant contracted dermatitis
as a result.
- The employer was negligent as
he materially increased the risk
in causing the harm to the
claimant
- Showers would have reduced but
not alleviated risk of dermititis
- Showers would have reduced but
not alleviated risk of dermititis
- MCGHEE APPLIED IN
- Wilshire v Essex
- A premature baby was given too
much oxygen by a junior doctor.
This left him blind in 1 eye. The
condition could have been
caused by the excess oxygen he
had been exposed to or it could
have been caused by four other
factors unrelated to the oxygen,
but related to the premature
birth.
- Fairchild
- This was a conjoined appeal involving
three claimants who contracted
mesothelioma. Each of the claimants
had been exposed to asbestos by a
number of different employers. They
were unable to demonstrate, and
medical science was unable to detect,
which employer exposed each of them
to the one fatal fibre.
- Mesothelioma can be caused by a single fibre of
asbestos. The condition does not get worse the
greater the exposure. Once the fibre has embedded
into the lung it can lay dormant for 30-40 years
before giving rise to a tumour which can then take 10
years to kill. It will be only the last 1-2 years where a
person may experience symptoms. By this time it is
too late to treat.
- What is Mesothelioma
- Rule/Held: If the claimants could demonstrate that one employer had materially increased the risk of
contracting mesothelioma (Under McGhee) they were entitled to claim full compensation from that one employer.
- Barker v Corus
- Mr. Barker contracted mesothelioma. He
had worked for a number of different
employers as well as self employed being
exposed to asbestos
- Held: Where exposed by number if employers more than
once, they are all severally liable but not jointly liable for
their portion of negligence. Only 1 could be at fault
- Damages were reduced under Contributory Negligence Act for his part
whilst self employed
- Section 3 Compensation Act 2006
- Any defendant liable under the rule
held in Fairchild is jointly AND
severally liable for the claimants
mesothelioma
- THIS OVERRULES BARKER V CORUS
- SECTION ONLY FOR MESOTHELIOMA
- Barker v Corus
still applies to
brick dust
- Barker v Corus
still applies to
brick dust
- Sienkiewicz v Greif
- An office worker died from
mesothelioma as the company made
steel drums and asbestos was leaked
into the offices atmosphere. Her duties
took her all over the premises, she
would also have been exposed to a low
level of asbestos in the general
atmosphere.
- The Court of Appeal found that the proper test
was whether the occupational exposure had
materially increased the risk of contacting the
disease.
- Held: S.3 Compensation Act and Fairchild rule applied, even when there was only one previous employer,
where the claimant was at risk, if the risk was materially increased due to employer, there is a breach
- Held: S.3 Compensation Act and Fairchild rule applied, even when there was only one previous employer,
where the claimant was at risk, if the risk was materially increased due to employer, there is a breach
- The Court of Appeal found that the proper test
was whether the occupational exposure had
materially increased the risk of contacting the
disease.
- An office worker died from
mesothelioma as the company made
steel drums and asbestos was leaked
into the offices atmosphere. Her duties
took her all over the premises, she
would also have been exposed to a low
level of asbestos in the general
atmosphere.
- THIS OVERRULES BARKER V CORUS
- Any defendant liable under the rule
held in Fairchild is jointly AND
severally liable for the claimants
mesothelioma
- Section 3 Compensation Act 2006
- Damages were reduced under Contributory Negligence Act for his part
whilst self employed
- Held: Where exposed by number if employers more than
once, they are all severally liable but not jointly liable for
their portion of negligence. Only 1 could be at fault
- Mr. Barker contracted mesothelioma. He
had worked for a number of different
employers as well as self employed being
exposed to asbestos
- Barker v Corus
- This was a conjoined appeal involving
three claimants who contracted
mesothelioma. Each of the claimants
had been exposed to asbestos by a
number of different employers. They
were unable to demonstrate, and
medical science was unable to detect,
which employer exposed each of them
to the one fatal fibre.
- Fairchild
- McGhee was applied
- Held that McGhee reversed
the burden of poof where the
was potentially more than one
cause
- Held that McGhee reversed
the burden of poof where the
was potentially more than one
cause
- A premature baby was given too
much oxygen by a junior doctor.
This left him blind in 1 eye. The
condition could have been
caused by the excess oxygen he
had been exposed to or it could
have been caused by four other
factors unrelated to the oxygen,
but related to the premature
birth.
- Wilshire v Essex
- The employer asked him to work
around bricks which exposed
him to the dust. The employer
failed to install showers within
the establishment and the
claimant had to cycle home
covered in brick dust daily. The
claimant contracted dermatitis
as a result.
- 1. McGhee v National Coal Board
- Where there exist two or more causes which operate concurrently it may be factually impossible to
determine which one was the cause. This has proved problematic not least because it is the claimant's
responsibility to establish which one was the cause. On general principles the burden of proving this is
on the balance of probabilities ie the claimant has to demonstrate that there is more than a 50%
likelihood of the cause being the breach of duty of the defendant.
- However as there is multiple issues of causation, the but for test
will not suffice
- The 'But For' Test
- Barnett v Chelsea & Kensington Hospital
- Will be based around problems it determining causeation
- 2. Issues regarding the objective test
and the reasonable man
- Problems can occur when the
reasonable standard of care must be
meeting for different circumstances.
- For example: A Learner driver is
expected to be held to the same
standard as a reasonably competent
driver
- Nettleship v Weston
- Compare
- Roberts v Ramsbottom
- Mansfield v Weetabix
- Roberts v Ramsbottom
- Nettleship v Weston
- One grey area the law has been seen over the years is
the professional standard of care for medical negligence
- The standard of care applied to professionals with a particular skill or
expertise is that of a reasonable person with same skill. A medical
profession is expected to show greater degree of skill to a patient than
the reasonable man.
- Bolam v Frien
- while undegoing treatment the
defendant did not give any
relaxant drugs to the patient.
The claimant suffered a
fracture. The doctor failed to
warn the patient of any risk
prior to the performance.
- There was divided opinion amongst
professionals as to whether
relaxant drugs should be given. If
they are given there is a very small
risk of death, if they are not given
there is a small risk of fractures.
The claimant argued that the
doctor was in breach of duty by not
using the relaxant drug
- Held: If a doctor applies with what is regarded as recognised medical practice
then they cannot be liable for failure to meet the standard expected
- Maynard v Health Authority
- The Bolam test was applied, here there was a split decision
between medical professionals about which surgical
procedure would be sufficient, which was divided to 50% -
50%
- Was held to still be in accordance with the recognised medical practice
- Not liable
- Sideaway
- mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for
doctors to decide how much to tell patients about the risks of treatment, and that therefore you could
not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not
have informed you of the risk. Thus the principle that the standard of medical care is to be determined
by medical evidence.
- The claimant suffered from pain
in her neck, right shoulder, and
arms. Her neurosurgeon took
her consent for cervical cord
decompression, but did not
include in his explanation the
fact that in less than 1% of the
cases, the said decompression
caused paraplegia. She
developed paraplegia after the
spinal operation.
- HOWEVER:Lord Scarman said that the Bolam test
should not apply to the issue of informed
consent and that a doctor should have a
duty to tell the patient of the inherent
and material risk of the treatment
proposed.
- Held not liable for POTENCIAL as followed R.M.P
- HOWEVER:Lord Scarman said that the Bolam test
should not apply to the issue of informed
consent and that a doctor should have a
duty to tell the patient of the inherent
and material risk of the treatment
proposed.
- SIDEAWAY WAS CONSIDERED IN
- Chester v Afshar
- Claimant had suffered back pain for many
years. There was a 1-2% chance that her
state could worsen due to the surgery.
Afshar failed to warn the risks to the
patient. Patient's back worsened
- Held: The doctor was negligent in his failure
to inform of the risk of surgery. Sideaway
was not applied
- If the doctor had warned of the risks then the claimant could have taken time
to discuss with family members what their choice would be and whether they
water to undergo. Held that if she was aware of the risks she would not have
undergone
- Montgomery v Lanarkshire HB
- Pregnant lady was diabetic, therefore
expected to give birth to a larger
baby. This would raise the chances of
her getting 'SHOULDER DISTOSIA'
thus making birth a lot more difficult.
The claimant wasn't told and the
effects occured
- Held: That the decision in Sideaway should be
affirmed and the approach of Lord Scarman should be
taken. Patients should be warned of the risk that
could occur, allowing them to participate what will
occur.
- HOWEVER
- Surely Mrs Montgomery's situation was
already occurring, she could not opt out of
the situation and warning of the risk would
not have made the chances decrease
- Surely Mrs Montgomery's situation was
already occurring, she could not opt out of
the situation and warning of the risk would
not have made the chances decrease
- Bolitho v City of Hackney H.A
- A 2 year old child was admitted to hospital suffering from
breathing difficulties. A doctor was summoned but did not attend
as her bleep was not working due to low battery. The child died.
The child's mother brought an action claiming that the doctor
should have attended and intubated the child which would have
saved the child's life. The doctor gave evidence that had she
attended she would not have intubated. Another doctor gave
evidence that they would not have intubated. The trial judge
applied the Bolam test and held that there was no breach of duty.
The claimant appealed.
- In applying the Bolam test where evidence is given
that other practitioners would have adopted the
method employed by the defendant, it must be
demonstrated that the method was based on logic
and was defensible.
- 1. Medical experts opinion was reasonable
- Experts had logical basis for their decision
- Unltimately it was for the court to decide whether the risks had been taken into consideration
- Floodgates of litigation?
- Should professionals integrity be challenged by non professionals?
- Floodgates of litigation?
- Unltimately it was for the court to decide whether the risks had been taken into consideration
- Experts had logical basis for their decision
- 1. Medical experts opinion was reasonable
- In applying the Bolam test where evidence is given
that other practitioners would have adopted the
method employed by the defendant, it must be
demonstrated that the method was based on logic
and was defensible.
- A 2 year old child was admitted to hospital suffering from
breathing difficulties. A doctor was summoned but did not attend
as her bleep was not working due to low battery. The child died.
The child's mother brought an action claiming that the doctor
should have attended and intubated the child which would have
saved the child's life. The doctor gave evidence that had she
attended she would not have intubated. Another doctor gave
evidence that they would not have intubated. The trial judge
applied the Bolam test and held that there was no breach of duty.
The claimant appealed.
- HOWEVER
- Held: That the decision in Sideaway should be
affirmed and the approach of Lord Scarman should be
taken. Patients should be warned of the risk that
could occur, allowing them to participate what will
occur.
- OVERRULED SIDEAWAY
- Pregnant lady was diabetic, therefore
expected to give birth to a larger
baby. This would raise the chances of
her getting 'SHOULDER DISTOSIA'
thus making birth a lot more difficult.
The claimant wasn't told and the
effects occured
- Montgomery v Lanarkshire HB
- If the doctor had warned of the risks then the claimant could have taken time
to discuss with family members what their choice would be and whether they
water to undergo. Held that if she was aware of the risks she would not have
undergone
- Held: The doctor was negligent in his failure
to inform of the risk of surgery. Sideaway
was not applied
- Claimant had suffered back pain for many
years. There was a 1-2% chance that her
state could worsen due to the surgery.
Afshar failed to warn the risks to the
patient. Patient's back worsened
- Chester v Afshar
- The claimant suffered from pain
in her neck, right shoulder, and
arms. Her neurosurgeon took
her consent for cervical cord
decompression, but did not
include in his explanation the
fact that in less than 1% of the
cases, the said decompression
caused paraplegia. She
developed paraplegia after the
spinal operation.
- mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for
doctors to decide how much to tell patients about the risks of treatment, and that therefore you could
not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not
have informed you of the risk. Thus the principle that the standard of medical care is to be determined
by medical evidence.
- Sideaway
- Not liable
- Was held to still be in accordance with the recognised medical practice
- The Bolam test was applied, here there was a split decision
between medical professionals about which surgical
procedure would be sufficient, which was divided to 50% -
50%
- Maynard v Health Authority
- Held: If a doctor applies with what is regarded as recognised medical practice
then they cannot be liable for failure to meet the standard expected
- Bolam Test also applies to diagnosis of a patient
- Whitehouse v Jordan
- Not liable
- Not liable
- Whitehouse v Jordan
- There was divided opinion amongst
professionals as to whether
relaxant drugs should be given. If
they are given there is a very small
risk of death, if they are not given
there is a small risk of fractures.
The claimant argued that the
doctor was in breach of duty by not
using the relaxant drug
- while undegoing treatment the
defendant did not give any
relaxant drugs to the patient.
The claimant suffered a
fracture. The doctor failed to
warn the patient of any risk
prior to the performance.
- Bolam v Frien
- The standard of care applied to professionals with a particular skill or
expertise is that of a reasonable person with same skill. A medical
profession is expected to show greater degree of skill to a patient than
the reasonable man.
- For example: A Learner driver is
expected to be held to the same
standard as a reasonably competent
driver
- Clapham Omibus
- Problems can occur when the
reasonable standard of care must be
meeting for different circumstances.
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