Breach of Duty

• What is the standard used to determine reasonable behavior in legal contexts?


  The standard is that of the 'reasonable person'
• Who does the 'reasonable person' standard refer to?


  The reasonable person is the ordinary person performing the task competently
• Can you give examples of who might be considered a reasonable person?


  It could be the reasonable driver, the reasonable doctor, or the reasonable manufacturer
• What must be established to determine if someone acted unreasonably?


  It must be established that D has done something the reasonable person would not do
• What is another way to determine if someone acted unreasonably?

  It must be established that D has not done something the reasonable person would do
• When deciding whether the D has fallen below the standard of care, the courts take into account certain risk factors. These risk factors may lower or raise the standard of care expected from the D.
• Seriousness of the Risk


  This risk factor increases the standard of care for the defendant and is usually applied when the claimant is vulnerable.
• Magnitude of Risk 


  The size of the risk can again alter the standard of care expected.  The higher the risk, the greater the standard of care expected of the reasonable man. This risk factor is concerned with the likelihood.
• Magnitude of the risk example - Paris v Stepney Borough Council 

  Held that due to the fact that the consequence was higher, the standard of care was also higher.
• Magnitude of risk example - There was no breach as the reasonable man only takes precautions against reasonable risks. Therefore, the principle in this case was, the lower the risk, then fewer precautions needed to be taken. 
• If the risk is unknown the reasonable man is not expected to take precautions.
• Whether all precautions have been taken.


  Only reasonable precautions need to be taken, there was no need to incur expense to eliminate every possible risk.
• What are the benefits of taking the risk? (Social Utility argument)


  If there is an emergency then greater risks can be taken and a lower standard of care can be accepted. Additionally courts accept hindsight.
• Practical Precautions example - Latimer V AEC

  Held that the D had met the standard of care of a reasonable man.
• Social Utility argument example - Watt V Hertfordshire County Council.

  Held that the expected care of a reasonable man was lower due to the emergency.
• There may be a social value to the defendants activity. This only prevents a breach where the social value outweighs the risk entirely
• There are two things courts consider to establish a breach.

  • The reasonable man test
  • The risk factors involved
• Scout Association v Barnes case example where they were doing an activity in the dark held that - the risk did not outweigh the social value of the activity.