LWZ116 Lecture 4: Lecture-4-notes
Lecture 4 - Torts
2017
Breach of care concerns with the identification of those situations where there has been a
want of care, and there has been a breach of that duty.
In determining whether the duty of care has been breached, two issues need to be
addressed:
1. Standard: What is the relevant standard of care; and
2. Breach: Has the defendant’s conduct failed to achieve (breached) the standard of
care.
Standard of care is a part of BREACH, when we say, have you acted negligently, we
determine that by asking what is the relevant standard? And have you met that standard?
And then determining that you meet that standard, then we apply our test of BREACH of
duty of care. It is operation of law and Breach is a question of fact and we have to argue in
the facts whether the breach has occurred.
Thus, the action in negligence is concerned with whether the defendant failed to act in a
way that is consistent with the standard of care required by the law
‘Negligence is to do or omission to do something which a reasonable man, guided upon
the considerations, ordinarily regulating the conduct of human affairs, would do, or omit to
do.’ Blyth v Birmingham Water Work (1856) 11 Ex 781
In formulating the relevant standard, two main approaches are possible:
1. Subjective: Look to the intentions and subjective knowledge of the defendant, did
the defendant know what they were doing was wrong, did the y think whether it
may harm another person? Did they intend to harm the person? Were they
completely indifferent to another person?;
2. Objective: Look to some external artificial standards. Actions of a reasonable
prudent man.
Vaughan v Menlove it was discussed
Whether the standard of care should be, whether the defendant had proceeded with such
reasonable caution as a prudent man would have exercised, under such circumstances?
Wich is an objective standard; or whether he acted bonafide and to the best of his
judgment, this is a subjective standard.
The defendant argued, that the question should have been, whether a defendant acts
honestly and bonafide, to the best of his judgment?
The court rejected this approach. It said that a subjective approach would leave so vague a
line as would afford no rule at all. The degree of judgment belonged to each individual, is
infinitely variable. Instead the court said, rather than saying, liability and negligence
should be co-extensive, with the judgment of each individual, which would be as variable
as the length of the foot of each individual, we would rather be adhere to the rule, which
requires in all cases, a regard to caution, such as a man of ordinary prudence would
observe.
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Lecture 4 - Torts
2017
In other words we are not looking at what the defendant would have thought or done,
rather, what a reasonable man would have done in those circumstances.
A reasonable an as defined in Hall v Brooklands auto racing club.
‘The standard of foresight of the reasonable man is, in one sense, an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular
person whose conduct is in question.’ Glasgow Corp v Muir [1943] AC 448 (Lord Macmillan)
‘He is not an extraordinary or unusual creature; he is not superhuman; he is not required to
display the highest skill of which anyone is capable….. He is a person of normal intelligence
who makes prudence a guide to his conduct. Arland v Taylor [1955] 3 DLR 358
‘The common law recognises many circumstances in which the standard of care expected
of a person takes account of some matter that warrants identifying a class of persons or
activities as required to exercise a standard of care different from, or more particular than,
that of some wholly general and “objective community ideal”. Chief among those
circumstances is the profession of particular skill. A higher standard of care is applied in
those cases. That standard may be described by reference to those who pursue a certain
kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of
skill, by reference to a more specific class of occupation such as that of the specialist
medical practitioner. At the other end of the spectrum, the standard of care expected of
children is attenuated’ Imbree v McNeilly (2008) 236 CLR 510
In other words, standard of care of a reasonable man is a general standard, which is raised
with the type of specialised skill owned by the defendant.
LOWER STANDARD OF CARE
Child – The courts are more lenient with children than adults. The courts have been
sensitive to the diminished capacity of children to take care and have developed a special
standard of care applicable to them.
Two different issues:
1. Is this child capable of negligence liability (subjective); if yes,
2. Would the reasonable child of similar age, experience and intelligence understand
and appreciate the danger or risk where “the age is not such as to make discussion of
negligence absurd” McEllistrum v Etches [1956] SCR 787
“In determining … negligence in the case of children there are two separate
questions to be determined. [1] Whether the child, having regard to his age,
intelligence, experience, general knowledge and his alertness is capable of being
found negligent at law in the circumstances under investigation. … The test in order
to determine this preliminary question is therefore a subjective one. … [2] Second
question, whether he was negligent at all and, if so, to what degree. … one must ask
what a reasonable child of that particular age could reasonably be expected to do
and to foresee under those particular circumstances. This test… is still a very
objective one.’ Heisler v Moke [1972] 2 OR 446
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