Negligence Tort For Legal Duties

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Once a duty of care has been established not only should the defendant owe a duty of care, but also must be in breach of that duty. Therefore the defendant should have failed to come up to the standard of care required by law for fulfilment of duty. What is the standard of care and has the standard been breached are two questions that will arise to establish a breach of that duty. Standard of care required in negligence law typically relates to a person’s conduct, rather than a person’s state of mind. The basic rule is that the defendant must conform to the standard of care expected of a reasonable person. The so-called reasonable person in the law of negligence is a creation of legal fiction. This legal fiction steps into the shoes of the defendant and such a “person” is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circumstances. The actual defendant maybe stupider or more ignorant or maybe cleverer or more knowledgeable but is still judged by this abstract impersonal standard. The actual knowledge and experience of the defendant will also be taken into account. It is therefore a question of foreseeabilty rather than probability. Foreseeabilty can only be discovered as mentioned previously through actual knowledge and experience. Whereas probability will not depend on those factors. [2] For instance one may consider a defendant working on a loading dock and tossing large bags of grain onto a truck. During the process, defendant notices two children playing near the truck. The defendant throws a bag towards the truck and unintentionally strikes one child. In this instance, a jury would take into account the defendant’s actual knowledge that children were playing in the area when the jury determines whether the defendant acted reasonably under the circumstances. One must note, however, that the defendant would be liable for negligence only if the defendant owed a duty to the child. According to the dictum of Alderson B, the objective standard is defined as – “Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do,or something which a prudent and reasonable man wouldn’t do.” [3] In Glasgow Corporation v Muir the House of Lords stated that the standard of foresight of the reasonable man is an impersonal test independent of the idiosyncrasies of the particular Defendant. Therefore that it is an objective test. Further the relationship between the Plaintiff and Defendant may also lead the courts to modify the standard required; Goldman v Hargrave.” [4] This was a case where there was a failure to extinguish a fire started by natural causes. It took into account what was reasonable to expect in his individual circumstances. It is left to the judge to decide what in the circumstances of a reasonable man would have had in contemplation and thereby room for diversity of view.

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