Torts Notes

To prove breach of duty

1) Must allege precaution

2) Show precauts5B(1)ion is cost effective (‘reasonable’)- feasible

BREACH OF DUTY

I. Standard of care the Defendants

* Objective standard: what would the reasonable person have done in the situation with which the D is presented?

* Compare D with a reasonable person

* Subjective characteristics : this test may alter according to the type of D

* It is true that a person should not undertake a task know to involve danger to other persons if that person has knowledge of his/her competence to perform it

* But if P was aware of the limitations in D’s skill then the expected standard will reflect the reality of the skill level

I. CHILDREN

* RULE : The standard of care should be lowered for children

Doubleday v Kelly [2005]

* Attractive nuisance for a 7 year old P

* P’s action was reasonably foreseeable for a child

McHale v Watson (1966)

FACT

* A 12 year old D threw a sharpened rod at a tree which bounced back and injured 9 year old P’s eye

ISSUE

* Lower standard of care for a 12 year old?

HELD

* Conduct was unreasonable for an adult, but not for a child

* The standard of care should be lowered for children

* Compared to an ordinary child in that age group.

* BUT no allowance for individual idiosyncrasies of D

II. MENTAL ILLNESS

* RULE : Same standard of care as normal individuals UNLESS so incapacitated that;

a). No control over activity

b). Cannot distinguish right/wrong.

Adamson v Motor Vehicle Insurance Trust (1957)

FACT

* P was run down by D who thought he was being chased due to his mental disability, and he ignored the traffic sign.

HELD

* D knew/ was aware of his action, he knew it was a wrongdoing

* Mental illness is not a characteristic of humanity

Carrier v Bonham (2002)

FACT

* D of unsound mind was hit by P. P suffered...