Tort 2 - Negligence and Breach of Duty

Question 1

If the defendant owed the claimant a duty of care, what is the next step

Answer 1

Assess the standard of care the defendant should have met

Question 2

What is the standard of care the defendant must meet?

Answer 2

The standard of care of a reasonable person - what would a reasonable person have done

Objective - defendants own characteristics not considered - determined according to task the D is undertaking

Question 3

How do you assess breach and if defendant fell below standard of care?

Answer 3

1. After the event

Balance:
1. Magnitude of risk
2. Practicability of taking precaution

Question 4

How do the courts assess magnitude of risk?

Answer 4

1. How likely the harm will occur?
   (low risk = hard to establish breach)
2. How serious is the potential harm?
   (higher risk of harm = more precaution D should take)

Question 5

What will the courts consider when considering precautions D should have taken?

Answer 5

Social utility of defendants conduct

Example: rescue mission = fewer safety precautions

Question 6

What standard will under skilled, skilled professionals and children be assessed at?

Answer 6

The reasonable standard of care of that person undertaking the role in that profession or of that age

1. newly qualified driver = standard driver
2. doctor = standard doctor
3. Child = child of that age

Question 7

What is res ipsa loquitor?

Answer 7

‘The thing speaks for itself’ where there is not an explanation of how the incident happened the courts can infer the defendant breached their duty

Question 8

What are the three conditions to satisfy res ipsa loquitor?

Answer 8

1. Absence of explanation
2. The thing causing the accident under the defendants control
3. Accident would not have happened if proper care was taken