Standard of Care and Breach in a Negligence Action

Today I recorded a series of lectures relating to standard of care and breach of the duty of care in a negligence action. For those who are not familiar with these concepts, here is the drill.

For there to be a viable negligence action, it is necessary for a number of elements to be satisfied. Last week we spoke about finding a duty of care. That is- is there a legal relationship between two or more individuals/entities which will gives rise to obligations?

The next element which needs to be discussed is what is the standard of care that the defendant (person/s that causes the loss or harm) owes to the plaintiff (the person who has suffered the loss or damage). Generally, the test for working out what the standard or level of care is relates to the test of what the reasonable person would have done in the circumstances. Obviously, this is another set of issues in itself- what/who is a reasonable person?? Of course, I think I am entirely reasonable- but others may disagree?!? As you can imagine the level of care may be different depending on the skills, qualifications or expertise a person ‘professes’ to have.  A medical doctor will owe a higher level of care than a first aider as an example.

As the name would suggest, breach issues relate to whether or not the defendant (person who may has caused the loss) has breached or contravened their duty of care. Some examples of this may include – has a driver run a red light or how about the doctor who operates on the wrong eye whilst undertaking surgery. As with anything law related, determining whether or not there has been a breach of the duty of care is complex and beset with a number of factors. In New South Wales it is necessary to look to section 5B of the Civil Liability Act to help determine these issues.

I really don’t want to ruin the excitement for those of you who are about to find this section of the legislation- so I apologise in advance. But essentially a number of factors need to be looked at to determine whether or not a reasonable person in their position would have taken precautions against a risk of harm.

So in summary, like is often the case in law, there is no determinative and definitive answer as to whether or not there has been a legal breach- instead all you can really do is present some legal arguments based on past cases.

As always, the stories of the people in the cases are the best parts of law- in my opinion at least. Today we spoke about the consumers who contracted Hepatitis A as a result of eating contaminated oysters- yep the oysters were consuming the poo from the communities who lived around the relevant lake. We also spoke about Ms Fahy who was a police officer who contracted PTSD after attending a hold up. Perhaps my favourite set of cases about these issues are the standard of medical knowledge cases. As Lord Denning states in Roe v Minister v Health ‘we must not look at a 1947 accident with 1954 spectacles.’ In other words, one can only act on the information that is current and available at the time.

Anyway….until next time… I hope you enjoyed reading this snapshot about standard of care and breach in a negligence action.