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Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

5. Liability for Medical Injury  

G. T. Laurie, S. H. E. Harmon, and E. S. Dove

This chapter discusses ethical and legal aspects of medical liability. It covers compensation for injury; the basis of medical liability; what constitutes negligence; the problem of the novice; protecting patients from products; protecting patients from themselves; the doctrine of res ipsa loquitur; operational failures; causation; injuries caused by medical products or devices; and criminal negligence.

Chapter

Cover Evidence

14. Alternative Pathways to Proof  

To require evidence to be called to prove every single matter requiring proof in a trial would serve no useful purpose and lead to the unnecessary prolongation of trials. On occasion, therefore, a matter may be regarded as proved even though no evidence has been adduced to prove it in the normal way. Chapter 14 examines three devices used in the law of evidence to achieve this. These are formal admissions, judicial notice, and presumptions.

Chapter

Cover Lunney & Oliphant's Tort Law

4. Breach of Duty  

Donal Nolan and Ken Oliphant

This chapter begins by looking at the key cases in which the idea of negligence as conduct falling below the standard of the reasonable person was judicially elaborated. It then discusses what it means to exercise reasonable care, looking at relevant considerations such as the gravity of potential harm, the cost of precautions and the utility of the defendant’s conduct. It is explained that negligence is judged from the defendant’s standpoint but according to an ‘objective’ standard of care. The chapter concludes by considering the relevance of ‘common practice’ in setting the standard of care, and the doctrine of res ipsa loquitur (‘the thing speaks for itself’).

Chapter

Cover Tort Law: Text and Materials

4. Breach of Duty  

This chapter begins by looking at the key cases in which the idea of negligence as conduct falling below the standard of the reasonable person was judicially elaborated. It then discusses reasonable care; the utility of the defendant's conduct; the ‘objective’ nature of the standard of care; the relevance of ‘common practice’ in setting that standard; and the doctrine of res ipsa loquitur (‘the thing speaks for itself’).

Chapter

Cover Concentrate Questions and Answers Tort Law

3. Negligence II: Breach of Duty  

Dr Karen Dyer and Dr Anil Balan

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses negligence in terms of breach of duty. To answer questions on this topic, students need to understand the following: the concept of duty of care in negligence; the objective standard of care: the ‘reasonable person’ and factors relevant to the standard of care; variations of the objective standard: children, emergency situations, sporting events, and skilled persons ‘professing to have a special skill’; and res ipsa loquitur.

Chapter

Cover Street on Torts

6. Breach of duty  

This chapter examines breach of duty in negligence. It discusses the factors that courts consider in determining whether defendants are in breach of their duties of care to claimants. In each case, these factors include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person. The chapter considers also special issues involving proof of breach, most importantly in the application of the res ipsa loquitur doctrine.

Chapter

Cover Tort Law Concentrate

6. Breach of duty  

The standard of care

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

Chapter

Cover Tort Law Directions

3. Breach of duty  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The first step in establishing a negligence claim is to prove that the defendant owed the claimant a duty of care. The claimant must then show that the defendant has been negligent, that is, has breached that duty. To determine negligence, one must therefore establish how the defendant ought to have behaved in the circumstances (that is, standard of care) and whether the defendant’s behaviour fell below the desired standard (that is, breach). The basic standard of care in negligence is objectively assessed: that of the reasonable man. The objective standard can at times appear to work particularly harshly against a defendant, as exemplified by the case Nettleship v Weston (1971). This chapter examines breach of duty and the standard of care, the proof of negligence, and the application of the maxim res ipsa loquitur. It also discusses the Compensation Act 2006 which addresses the problem of the so-called compensation culture.