Content area
Full text
Abstract
This article, the third in a series on clinical negligence, looks at the law surrounding breach of the duty of care In negligence. it shows some of the principles that judges and lawyers use in order to decide whether a person has broken his/her duty of care In the tort of negligence. It will be seen that the principles are contained In decided court cases, some of which are quite old but are still relevant today. The focus of this article is on the rule that courts, in deciding the Issue of a breach
of duty of care, would judge the defendant's conduct by the standard of what the hypothetical, 'reasonable person' would have done In the circumstances of the case.
The last article in this series (Vol 11(16): 1065-7) focused on the first requirement of the tort of negligence - the need to establish that the defendant owes the claimant a duty of care. This article and the next one in the series will focus on the second requirement of the tort of negligence - the need to show that the defendant has broken that duty of care. Put in the context of nursing, nurses owe their patients a legal duty of care, but when can we say that they have broken their duty? What conduct or lack of it on their part amounts to a breach of the duty of care in law?.
The nursing perspective of this issue will be discussed more fully later in the series. This and the following article will introduce the concept of breach of duty of care from a perspective of more general legal principles in order to give more context for the discussion in subsequent articles. There are two central issues for a court to decide in determining a breach of duty of care. The first matter is the appropriate standard on which the defendant is to be judged. The second is whether on the balance of probabilities the defendant has failed to meet that required standard. This article focuses on the first issue.
REASONABLENESS
Reasonableness is the key concept to understanding the law of negligence, particularly the issue of breach of duty of care. It is a very fluid concept which allows...