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Duty of care in the law of negligence
Duty of care in negligence
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Claimant bears the burden to prove breach of duty is conduct that falls below standard of careexpected from a reasonable person
Conduct
Wrongful conduct
Negligence is the omission (failure) to do something which a reasonable man would do, or
something which a prudent/reasonable man would not do.
o Blythe v Birmingham Waterworks (1856)
What defendant actually did - rather than state of mind
Is question of fact
o Depends on evidence
Is generally not appealable
Reasonable person:
Fictional person
o Hall v Brooklands Auto Racing Club (1933) - Omnibus
o MacFarlane - London Underground
If reasonable person wouldn't have done anything differently from defendant, not liable
How does court decide?
o Foresight not Hindsight
o Roe v Minister of Health (1954)
Hospital staff put ampules in disinfectant
Seeped through glass - wasn't foreseeable
Didn't know it was able to seep through
Standard of Care
Balancing process between:
Risk
o That was reasonably foreseeable
o If reasonable person with defendant's knowledge and in their position would have
foreseen the risks - defendant should have foreseen risks
Precautionary steps defendant should have taken in response to risks
Risk
Must be reasonably foreseeable
If reasonable person with D's knowledge and in D's position would have foreseen risk, D
should have foreseen risk
Ordinary members of the public contrast with specialists/professionals
Ordinary members of public:
Compared to reasonable person doing same activity
Whiting v First/Transpenine Ltd (2018)
o Failed to spot claimant (drunk) staggering towards train
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