Breach of Duty Flashcards
Who proves breach and to what extent?
C proves D breached duty on balance of probabilties
What are the two broad elements of the test to see if there has been a breach?
- What standard of care D should have exercised?
- Did D fall below that standard of care?
How is the standard of care assessed?
We consider what the reasonable person would or would not have done in that situation - objective test
D is measured against a hypothetical, average person, ignoring D’s individual attributes
Position for skilled defendants
Assessed to standard of a reasonable person with that skill, so a reasonably competent doctor for example
They won’t ordinarily be in breach if their actions are in accordance with a reasonable body of professional opinion, but the court can depart from this
Following a non-mainstream treatment option may make someone in breach
Position for under-skilled defendants
Standard is not lowered due to inexperience, so a learner driver is assessed to standard of an ordinary, qualified driver
They may choose to rely on a more experienced person’s advice, which might affect the likelihood of them being in breach - could mean the advice giver is in breach
Position for child defendants
They are judged to the standard of care that is reasonably expected of a child of the same age
Child under 18 cannot sue or be sued without an adult ‘litigation friend’ helping them
What factors are considered when deciding if D has fallen below the standard of care?
Broadly, balance the risks and cost/ease of precautions
- How likely is the injury? - D must guard against reasonable probabilities, not fantastic possibilities
- Extent of risk - could it really harm someone? - take account of peculiarities of C (needing googles due to one eye)
- Cost and practicality of precautions - high risk and low cost = reasonable person would take precautions
- Were D’s acts in public interest?
- What is common practice?
- State of knowledge of D - D must be judged based on what risks should have reasonable been known about at the time of the incident
What is res ipsa loquitur and when does it apply?
‘The thing speaks for itself’ - applies rarely where it is obvious there is a breach and these three apply:
- The ‘thing’ must be under D’s control
- Action does not usually occur without negligence
- Cause of action is unknown to C
When the maxim applies, it raises a prima facie inference of negligence against D; D then needs to provide a reasonable explanation of how the accident could have occurred without negligence
How do D’s criminal offences affect the proving of breach?
If D is convicted of a criminal offence that involves carelessness, they are presumed to have committed that offence for the purposes of negligence proceedings
C doesn’t have to prove breach in those situations and can rely on the conviction as evidence that this careless conduct did take place
Old convictions would be irrelevant; must be a conviction in relation to this incident (driving without due care and attention and crashing into C)
