Breach of Duty of Care Flashcards
What is the two stage test in determining whether there was a breach of duty of care?
- The standard of care to be expected of the defendant must be established. Question of law
- Once established, all the facts and circumstances need to be considered to see if defendant has fallen below the standard. This is a question of fact.
What is the starting point for the standard of care being imposed?
The defendant must behave as a reasonable person would in all circumstances.
They are not uber cautious or risk adverse, they just have to reach the standard of the reasonable person.
How will circumstances faced by D effect reasonable person test?
The court will look at the particular circumstances which the defendant faced and ask what the reasonable person would have had in contemplation in those circumstances.
Is the reasonable person test based on the act or actor?
Standard based on the act and not the actor
Eg - act of driving not learner driver - standard held to be that of a reasonable driver
How will D being a professional affect the reasonable person standard?
The standard will be raised to that of reasonably competent professional
Eg solicitor should attain the standard of a reasonably competent solicitor
How will D being a child reflect reasonable person standard?
Standard will be reasonable child of the defendant’s age carrying out that act
How will illness/disability of D effect the reasonable standard?
Standard will be reasonable person who is unaware they are suddenly suffering with a disability/illness
Once an appropriate standard of care has been established, what will the court consider in deciding whether D breached their duty?
The court must consider all the particular circumstances of the case. Including:
- likelihood of harm
- magnitude of harm
- practicality of precautions
- benefit of D’s conduct
- common practice
- state of the art defence
- sport
What impact will the likelihood of harm have on the court’s decision as to whether there was a breach of duty?
The more likely someone is to get injured, the more likely it is that there will be a breach
What impact will the magnitude of harm have on the court’s decision as to whether there was a breach of duty?
If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury
What impact will the practicality of precautions have on the court’s decision as to whether there was a breach of duty?
Ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk.
To satisfy the duty of care, the defendant need only act reasonably - they do not need to take all precautions available
What impact will the benefit of the defendant’s conduct have on the court’s decision as to whether there was a breach of duty?
The value to society of the defendant’s activity is weighed against any possible damage that may result if the risk is taken.
This position is now reflected in the Compensation Act 2006 s 1 and in Social Action, Responsibility and Heroism Act 2015.
What impact will common practice have on the court’s decision as to whether there was a breach of duty?
If a defendant can show they have acted in accordance with usual practice in their field, this will count in their favour and may allow them to escape liability
What impact will sport have on the court’s decision as to whether there was a breach of duty?
Nothing short of reckless disregard for the claimant’s safety would constitute a breach/significant risk of injury
Who has the onus of proving a breach of duty and to what standard?
For the claimant to prove on the balance of probabilities that the defendant breached their duty of care
