Negligence
Duty and Breach
Prof Orla Sheils
Duty - Background
 3 types of action may be brought:
 Contract
 Negligence
 Product Liability
 To maintain a claim in negligence
the claimant must establish:



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A duty of care was owed to him
The duty was breached
He suffered injury/harm
The breach caused the harm
Definition
Failure to satisfy the duty
of care owed to a patient
so that reasonably
foreseeable damage
results to the patient.
 Barnett v Chelsea and Kensington
Hospital Management Committee
[1969]1QB 428, [1968]1All ER
1068(QBD)
CHILDREN:
 Request must come form a responsible
adult (typically parent – could be a local
authority).
 The request must be made by someone
with legal authority to act on the child’s
behalf to bring the doctor:patient
relationship into existence.
 Thus the doctor gives an undertaking to
the parent/agent but the LEGAL DUTY
OF CARE is owed to the child.
Incompetent Adults:
 Unconscious or mentally impaired.
 In law nobody is authorised to consent for such a person.
 Re F (mental patient: sterilisation) [1990]2AC1 – was the
first authority by court recognising the principle of
necessity in the patient’s best interests. Cf Lord Goff –
having intervened the doctor will owe a duty of care. In
such cases the doctor’s undertaking suffices for the
common law.
 Brandon LJ- more fully states the case for the unconscious
patient.
Institutional
liability
Vicarious Liability
 Under common law the employer is
vicariously liable for the torts of its
employees.
 Points that need to be established:
 Has the individual committed a tort?
 Is he/she an employee of the institution?
 Did he/she commit the tort in the course of
his/her employment?
PRIMARY OR DIRECT
LIABILITY
 In addition to vicarious liability the
hospital may be liable for breach of
duty owed directly to the patient.
NEGLIGENCE BREACH
 Reasonableness
 The best test for negligence is
whether the defs conduct was
reasonable in the circumstances of
the case.
 Standard is not necessarily
determined by the average conduct
of people.
 No matter how competent the defs
conduct was on average, he is
responsible for damage caused by a
single lapse below the standard of
reasonable care.
 Bolam v Friern Hosp Management
Cttee [1957]2 All ER 118.
 Test is of the ordinary skilled man in
exercising and professing to have
that special skill.
Duty to inform:
 Siddaway –v- Board of Governors of
Bethlam Royal Hospital and the Maudsley
Hospital
 Rogers -v- Whittaker 1992 from Australia
 SEE ALSO CHESTER v AFSHAR 2004- in
Negligence –Causation.
Moving from Bolam
 In general the fact that a doctor acted in
keeping with common practice is others is
strong evidence he has not acted
negligently BUT moving away from Bolam
the Courts have decided that this is not
conclusive and the FINAL arbiter of a
reasonable act is the COURT.
 Bolitho v City and Hackney HA
[1993]4MedLR 381.
 IRISH CONTEXT
 Case: Dunne –v- NMH 1989, Finlay,
Chief Justice
 Fitzpatrick vs White 2007 IESC 51
Foreseeability of Risk
 If danger could not reasonably be
anticipated – def did not act
negligently
 Roe v Min of health- defs not liable
for adverse reactions to
contaminated anaesthetic.
Magnitude of Risk
 A degree of care commensurate with
the risk created by the defs conduct
is required.
 Magnitude of risk has 2 components:
 likelihood the harm will occur
 severity of potential damage
 Specialists and Inexperienced
 Emergencies
Further Reading
 Williams- Medical Samaritans: Is
there a duty to treat? (2001)21 Ox.
Legal Studies 393 (Lexis)
 Williams - Are Doctors Good
Samaritans? (2004) 71 Medico
Legal Journal 165 (Lexis)