BREACH OF DUTY OF CARE

Breach of duty of care is when a person has acted below the standard of care. Standard of care can
further divided into two.

Firstly, standard of care of a reasonable man which can be tested using the reasonable man test.
Reasonable man test is a question where would a reasonable man have acted as the defendant has
done if the reasonable man was faced the same circumstances as the defendant? Reasonable man
according to Greer LJ in Hall v Brooklands auto-racing club is the man in the Clapham omnibus
which in simple words, means ordinary person who is not a professional.

Secondly standard of care of a professional which can be tested using the Bolam test. Professional id
a person who specialise in particular skill. The standard of care for professional is naturally of a
higher level than that required of ordinary man. The test in determining the standard of are of a
professional defendant was laid down in the case of Bolam V Friern Hospital management
Committee by, McNair J. The standard of care being laid is the standard of the ordinary skilled man
exercising and professing to have that skill.

There are several factors that help the judges to determine whether the conduct of the defendant
has fall below the standard of care. The first factor is state of knowledge of the defendant. For
example in the case of Roe V Ministers of Health where the defendant was held not liable for
causing the plaintiff to paralysed because he had no knowledge that the injection was contaminated
due to crack on the container containing the injection solution.

Other than that the magnitude of risk. In the case of Paris V Stephey Borough Council the defendant
was held liable because the failure of the defendant to provide goggle to his employee has cause the
plaintiff who is also one of the employee to go blind. The decision was based on the chances of risk
occurring which is high due to the working condition of the plaintiff which is in the welding company.
The seriousness of damage was also high because the plaintiff was already left with one eye, and if
the good eye is damage then he would be completely blind

Last but not least, common practice. The general presumption is that if it is a common practice in the
particular trade, then there is no breach. The presumption however rebutted in the case of Paris V
Stephey Borough Council. It was held that if an act is a common practice, liability will still be imposed
if the act is dangerous and gives rise to a considerable degree of risk or injury.

In this case, the standard of care that can be apply is the standard of care of a professional. This is
because the staff of Sihat Hospital specialise in medical skill. So, the Bolam test is to be apply where
the standard of care for Sihat Hospitals staff must be the same with the standard of care practiced
by the other medical staff in other hospital.

To determine whether the Sihat Hospitals staff, has acted below the standard of care, the court will
look into the factors. Firstly, state of knowledge of the medical staff. In Alis case, he was left
unattended for many hours because the medical staff know that even if they treated him
immediately, he still would be paralysed. So treating him immediately still would make no
differences. In Putra case, logically, medical staff know that they should do full body examination to
patient especially when it involves physical injury. Their delay in doing the examination had cause
Putra hip to suffered weakness when there is a chance to avoid such injury if the examination was
done earlier.
Next, magnitude of risk. In Alis case, there is no chances of risk occurring due to the medical staff
act of not treating Ali because the injury he suffered will still be the same even though the medical
staff perform immediate treatment to him. So, the seriousness of damage is only due to the accident
and not due to the medical staff action. In Putras case, there is high chances of risk occurring due to
medical staff delay in examination Putras hip. There are chances of avoiding the injury if they did
not delayed the examination. Even if it is only 20%, there are still chances. The delay has made the
injury certain even if there are still chances of recovering. The seriousness of damage were also high
because the delay has made Putras hip to develop weakness when it can be avoided.

Last but not least, common practice. In Alis case, it can be assumed that it is a common practice for
a medical staff to not perform an immediate treatment to patient such as Ali , that had already
suffered a permanent injury even before treatment is given because with or without immediate
treatment, he still would suffered the same. In Putras case, delaying treatment when there are
chances of recovering is not a common practice in any medical field. It is a general view that the
main role for any medical staff is to provide treatment for recovery in case where the injury is
avoidable.

Thus, in this case, based on the medical staff action, Sihat Hospital have not breach their duty of care
towards Ali. However, Sihat Hospital had breach their duty of care towards Putra.