Negligence Breach of Duty Flashcards
(19 cards)
What is a breach of Duty
Did the actions of the defendant reach the standard expected by a reasonable person if Yes no breach
What is the “Reasonable Person” Test
an objective standard of care- Negligence is a the omission to do something which a reasonable person would do or doing something that a reasonable person would not do.
Objective test for a reasonable person?
No account is taken of disabilities or peculiarities
Actions wholly beyond control
A driver will be able to escape liability if his actions at the relevant time were wholly beyond their control
Subjective element -reasonably foreseeable
Standard of a reasonable person in the particular circumstances at the time of the accident was the accident reasonably foreseeable
Breach of Duty Sports
Consent is given to inherent risks in normal play Behavior outside the rules can give rise to a breach of duty
Claims against schools
Is it reasonable to apply negligent care/breach of duty depends on the actions taken
Claims against Children
Children do not have immunity from tortious actions/liability however if a case is brought standard of care is that of a reasonable child of the same age and not the same reasonable standard of an adult
Factors Determining the standard of care
Degree of probability that damage will occur
The magnitude of likely harm
The importance of the objective to be achieved
Burden of taking precautions against the risk
Conformity with accepted practice
Special Skill
Degree of probability that damage will occur
All actions involve some risk but not all actions will result in liability it depends on the degree of probability that damage will occur- the lower the probability the lower the chance liability will attach
The magnitude of likely harm
The greater the injury that is risked the greater precautions required - if a particular characteristic of the claimant is known greater care must be taken
The importance of the objective to be achieved
The court may balance the risk of injury against the objective to be achieved by the defendant - In emergency situations the court will not expect the defendant to act in a way they might have had the had hindsight also SARAH 2015
Burden of taking precautions against the risk
Once a risk has been identified as being reasonably foreseeable what actions did the defendant take to guard against the risk - balance the degree or extent of damage v the cost of eliminating the risk
Conformity with accepted practice
Conformity with standard and accepted practice may be sufficient to fulfil the std of reasonable care/ Due diligence
Special Skill
A person who has a special skill is judged by the standards of a reasonable person possessing the same skill
Special Skill rule
The test is std of the ordinary skilled man exercising and professing to have that special skill ie a Dr is not negligent if he has acted in accordance with a practice accepted as proper by a responsibly body of medical men skilled in that particular art
Proof of Negligence
Balance of probability, Burden to prove negligence is on the claimant
Res ipsa Loquiter
The thing speaks for itself
To plead Res ipsa Loquiter the claimant must prove
The thing causing damage must have been under the defendants exclusive control & The accident should be of a sort that does not happen in the absence of negligence and no other explanation
