4LW005 LAW OF TORTS Study topic 2 Negligence: Breach of duty Weeks 2, 3 and 5 STUDY TOPIC 2: NEGLIGENCE: BREACH OF DUTY OF CARE
INTRODUCTION Once it has been established that the defendant owed a duty of care to the claimant in the circumstances of the case, it must then be shown that the defendant breached that duty. This is done by showing that the defendant failed to match the standard of care that is appropriate to the duty. In this Study Topic, we will examine the second requirement for a claim in negligence, the breach of the duty of care. In particular we will examine the standard of care and the objective test; factors considered by the courts to determine the breach of the duty of care; some special cases; the standard of care appropriate to professionals; as well as proof of a breach of duty. SUGGESTED MINIMUM STUDY TIME: 2 WEEKS Essential Reading Unlocking Torts Chris Turner 4th Edition 2014 Routledge Chapter 3 General Reading These titles are not essential reading. However, you may wish to refer to the relevant sections of the following text books to further your understanding. . Cases and Commentary on Tort. Harvey and Marston. Pearson. Chapter 4. OBJECTIVES By the end of this Study Topic, you should be able to: Knowledge and understanding · Understand the the standard of care owed by a 'reasonable man' · Understand by reference to decided cases the factors indicating that the duty of care will be breached · Understand the standard of care owed by professional persons, in particular doctors Understand the doctrine of res ipsa loquitur, where particulars of negligence are hard to prove Skills · Have some critical awareness of the issues involving breach of duty of care · Explain how a breach of the duty of care can be established · Apply the tests to factual situations to determine the existence of a duty of care NEGLIGENCE: BREACH OF THE DUTY OF CARE A defendant breaches the duty of care that he owes when he falls below the standard of care that is appropriate to the duty that he owes.
There are five main aspects to breach of duty: . The standard of care (and how it is measured) . The factors that may be taken into account in determining whether a breach of duty has occurred . The different or specific standard of care owed by some specific groups of defendants . The different means of identifying the standard of care owed by professionals (particularly doctors) · The means of establishing negligence when proving negligence is impossible (this is known as res ipsa loquitur) THE STANDARD OF CARE A judge in a case will determine the standard of care and whether or not the defendant's behaviour has fallen below that standard. The standard of care in a given situation is a question of law. However, whether or not the defendant has fallen below the standard is a question of fact that is