Breach Of Duty Of Care

1) Once it has been successfully proved a duty of care exists (generally) the claimant next has to prove that this duty has been breached. In order to do this it must be proved that the other party has ‘failed to act reasonably’. This is an objective test, not one intended to condone the incompetence of the wrongdoer.

2) The standard of care owed by an individual in any given set of circumstances can be adjusted by the following:
(a) Skills and experience – a qualified accountant owes a higher duty of care to a client than an unqualified bookkeeper
(b) Likelihood of injury – where this is high, the defend will have to do more to fulfill his duty
(c) The degree of risk – the ‘thin skull principle’ states that ‘you must take your victim as you find them’, hence a higher duty of care is owed to children than adults

(3) Ordinarily the burden of proof in tort lies with the claimant. However, where the facts speak for themselves the burden is reversed ‘Res Ipsa loquitur’. It is now the duty of the defendant to prove they have not acted negligently.