Breach of the Duty of Care
Week 7 Breach of the Duty of Care
Negligence
Duty of care
Established or novel duty?
Is it a non-delegable duty?
What is the scope of the duty?
Breach of duty
What is the relevant standard of care?
Has the standard been breached?
Damage
Is it recognized by law?
Was the breach a necessary condition of the harm?
Is the harm within the scope of the defendant’s liability?
Breach of Duty
The fault part of the negligence action
An act or omission of the defendant
A failure to act as a reasonable person would in the circumstances
Two Stage Process
What is the relevant standard of care?
Has the standard been breached?
Onus of proof
Plaintiff on balance of probabilities
Standard of care
Question of law
Objective test- the reasonable person
Glasgow Corporation v Muir
Measure the reasonableness not elimination of risk
Swain v Waverley Municipal Council
Change in the Standard
Emergency
Civil Liability Act 2003 (Qld) ss 26 and 27
Assistance to persons in distress by person performing duties for an entity as prescribed by the Civil Liability Regulation
ü û Children
-Lower standard according to child’s age and experience
-McHale v Watson
Actual Knowledge
Judged as at time of incident
Skill
-Raises standard to take into account special skill
-eg doctor, specialist, trained persons
-Rogers v Whitaker
-If defendant holds themselves out to possess the skill, this raises the standard
Disability
-Mental Carrier v Bonham
-Physical Roberts v Ramsbottom
Lack of Knowledge/ Ignorance
Inexperience -Imbree v McNeilly
Characteristics of the Defendant
Characteristics of the Plaintiff
ü û Plaintiff with known disability
-Raises the standard
-Paris v Stephney Borough Council
Children
-Take into account age and experience
Skill/knowledge
-May lower the standard but must anticipate carelessness -Bus v Sydney City Council
Intoxicated plaintiff
-Intoxication of plaintiff does not ‘increase or otherwise affect the standard
Negligence
Duty of care
Established or novel duty?
Is it a non-delegable duty?
What is the scope of the duty?
Breach of duty
What is the relevant standard of care?
Has the standard been breached?
Damage
Is it recognized by law?
Was the breach a necessary condition of the harm?
Is the harm within the scope of the defendant’s liability?
Breach of Duty
The fault part of the negligence action
An act or omission of the defendant
A failure to act as a reasonable person would in the circumstances
Two Stage Process
What is the relevant standard of care?
Has the standard been breached?
Onus of proof
Plaintiff on balance of probabilities
Standard of care
Question of law
Objective test- the reasonable person
Glasgow Corporation v Muir
Measure the reasonableness not elimination of risk
Swain v Waverley Municipal Council
Change in the Standard
Emergency
Civil Liability Act 2003 (Qld) ss 26 and 27
Assistance to persons in distress by person performing duties for an entity as prescribed by the Civil Liability Regulation
ü û Children
-Lower standard according to child’s age and experience
-McHale v Watson
Actual Knowledge
Judged as at time of incident
Skill
-Raises standard to take into account special skill
-eg doctor, specialist, trained persons
-Rogers v Whitaker
-If defendant holds themselves out to possess the skill, this raises the standard
Disability
-Mental Carrier v Bonham
-Physical Roberts v Ramsbottom
Lack of Knowledge/ Ignorance
Inexperience -Imbree v McNeilly
Characteristics of the Defendant
Characteristics of the Plaintiff
ü û Plaintiff with known disability
-Raises the standard
-Paris v Stephney Borough Council
Children
-Take into account age and experience
Skill/knowledge
-May lower the standard but must anticipate carelessness -Bus v Sydney City Council
Intoxicated plaintiff
-Intoxication of plaintiff does not ‘increase or otherwise affect the standard