Chapter 2 - Negligence (BOD) Flashcards
What is the second hurdle in a negligence claim?
The second hurdle is determining whether the defendant breached the duty of care.
What are the two main legal questions in a breach of duty?
The two main questions are: 1. How ought the defendant to have acted? (standard of care) 2. Did the defendant fall below that standard of care? (fact-based)
What is the standard of care for a reasonable person in negligence cases?
The standard of care is based on the reasonable person test, which asks what a reasonable person would do in the same situation. It is objective and impersonal.
How does the standard of care differ for skilled defendants?
Skilled defendants, like doctors or lawyers, must meet the standard of a reasonably competent professional in their field. The standard is higher than that for an ordinary person.
How is the standard of care determined for children in negligence cases?
Children are judged against the standard of care expected of a reasonable child of the same age, not an adult.
What factors are considered when determining if a defendant fell below the standard of care?
The following factors are considered: 1. Risk and magnitude: Greater risks require greater precautions. 2. Cost and practicality: Precautions should be taken if they are cost-effective; if not, they may not be required. 3. Public interest: Actions in the public interest, like firefighting, may justify higher risks. 4. State of knowledge: The defendant is judged based on the knowledge available at the time of the breach, not with hindsight.
What is the burden of proof in a breach of duty case?
The burden of proof is on the claimant to show, on the balance of probabilities, that the defendant breached the duty of care.
What does ‘Res Ipsa Loquitur’ mean in negligence cases?
‘Res Ipsa Loquitur’ means ‘the thing speaks for itself’—if the accident clearly resulted from negligence, the claimant may not need direct evidence.
How does the Civil Evidence Act 1968 help prove breach of duty?
If the defendant has been convicted of a criminal offense involving carelessness (e.g., reckless driving), this conviction can be used to help prove the breach of duty in the negligence case.
