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Question: Breach of Duty

In order for the defendant to be liable for negligence, the first stage is to show that there is a duty of care owed to the claimant. Once this is done, it must then be shown that the defendant breached his duty. Brach of a duty of care essentially means that the defendant has fallen below the standard of behaviour expected in someone undertaking the activity concerned. In Blythe v Birmingham Waterworks Co, Alderson B stated that “Negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do.” This is a question of fact.

Therefore, two questions arise from this statement:

1. How high is the standard of a reasonable person? Should the courts always apply the reasonable man test objectively, or can they take into account subjective elements?

2. How do we determine what a reasonable man would do?

Answer: The Standard of the “Reasonable Person” As we have seen from the statement of Alderson B in Blythe v Birmingham Waterworks Co, the standard of care is an objective one, so the defendant’s conduct is tested against the standard of care which would be expected from a reasonable person, which was defined by Alderson B as the “ordinary citizen.” This principle was applied in Vaughan v Menlove. Here the defendant built a haystack on land adjoining the claimant’s cottages which was poorly ventilated, causing it to catch fire, which damaged the claimant’s cottages. The defendant argued that he had acted honestly and in accordance with his own best judgement of the risk. However, it was held that this was not enough, as in this situation, the reasonable person would have taken pre......(short extract)

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Details: - Mark: 71% | Course: Tort Law | Year: 2nd/3rd | Words: 5928 | References: No | Date written: Not available | Date submitted: March 29, 2011 | Coursework ID: 654

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