Negligence: The Procedure Of Negligence

For a court to determine that negligence has occurred, there are four requirements that must be proven. A duty of care must be owed, next, a breach of that duty of care has occurred through the defendant’s actions, this breach of duty has caused damage to the claimant and the damage caused was not too remote.

The original test for whether a duty of care has been breached was famously set out in the case of Bolam , which involved, a plaintiff, who was suffering from a mental illness and being treated with electroconvulsive therapy. The treatment was known to induce convulsions or fits. The hospital failed to warn the patient of the risk of bone fracture associated with the treatment and did not provide the patient with anything to minimise

Instead, he took a much more robust approach. Which was that “if the courts remain unwilling to disregard expert opinion altogether...then a reasoned explanation must justify the decision.” Secondly, “the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuine of opinion that the defendant’s treatment accorded with sound medical practice.” This was the first signs of the judiciary shifting away from Bolam, to a more patient centred

This subsequent approach ruled in the minds of following judges. Lord Woolf MR in Pearce , who viewed that “if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk.” As well as Lord Steyn in Chester , who stated that “in modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well-establish, the risk of serious