Negligence: Breach of Duty Flashcards
What is the standard of care in negligence?
The standard of care is that of the reasonable person. This is an objective test, not based on the individual’s personal attributes. The court asks: “What would a reasonable person have foreseen in the particular circumstances?”.
What is the two-stage test for determining a breach of duty?
○ The court assesses how the defendant ought to have behaved, i.e., what standard of care should have been exercised (a question of law).
○ The court decides whether the defendant’s conduct fell below that required standard (a question of fact)
What is the ‘reasonable person’ test?
The reasonable person is an average person, neither very intelligent nor very stupid, neither overly cautious nor unduly optimistic. The test is objective, not considering the individual defendant’s abilities
How does the standard of care apply to a defendant with a special skill?
A defendant with a special skill (like a doctor) is judged against the standard of a reasonable person with that skill. They must meet the standard of their profession. However, the court will still ultimately decide if the defendant acted reasonably
How does the standard of care apply to an under-skilled defendant (e.g., a learner driver)?
The standard of care is not lowered for a lack of skill or experience. A learner driver is held to the same standard as a reasonably competent driver. A junior doctor is expected to show the level of competence befitting a doctor holding the same post
How does the standard of care apply to children?
A child is expected to show the care that can reasonably be expected of an ordinary child of the same age. Very young children are rarely found liable.
What factors are considered when determining if a defendant has met the required standard of care?
○Magnitude of the risk:
■Likelihood of injury.
■Potential seriousness of the injury.
○Cost and practicability of precautions: What measures could have reasonably been taken and their cost.
○Defendant’s purpose: The social value of the defendant’s activity.
○Common practice: Whether the defendant followed accepted practice in their trade or profession.
○Current state of knowledge: Whether the risk was known at the time
What is the principle of res ipsa loquitur?
Res ipsa loquitur means “the thing speaks for itself”. It is a rule of evidence that allows a court to infer negligence where:
○The thing causing the damage was under the defendant’s control.
○The accident would not normally happen without negligence.
○The cause of the accident is unknown to the claimant.
○If these conditions are met, the defendant must then provide a reasonable explanation of how the incident occurred without negligence
How does the Civil Evidence Act 1968 assist a claimant in proving breach of duty?
A defendant’s conviction for a criminal offense can be used as evidence in a civil case, assuming the conviction involved careless conduct related to the civil claim. For example, a conviction for driving without due care and attention can be used as evidence of negligence
What is the burden of proof in a negligence claim?
The claimant must prove the defendant breached their duty of care on the balance of probabilities. This means it is more likely than not that the defendant was negligent
