A more recent version of these How Is A Breach Of The Duty Of Care Established notes – written by Oxford students – is available here.
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How is a breach of the duty of care established?
Establishing a Breach
Duty of care is owed
D has fallen below the standard of what which is reasonable in that circumstances o Giliker:
? Reasonableness= flexible to accommodate infinite variety of cases
? Decisions in each case = useful guides, but not set down laws.
Otherwise law becomes too rigid. The Reasonable Person Test
Lord Macmillan: o Objective element = Reasonable man presumed to be free from overapprehension and from over confidence. o Subjective element = what the reasonable person would have done in D's external circumstances (not D's personality/relationships/education)
Nettleship v Weston : W injuring N in car accident during N giving lessons to W o Lord Denning MR (maj): The standard for driving a car is very high o It is no defence to say you are a learner driver
? As the standard you must drive at is that of an experience driver who makes no mistakes. o Equally, even if the passenger knows you are not of a high standard, or drunk, or one-eyed
? And voluntarily agrees to be in the car with you
You still owe him a duty of care to drive like a reasonable and prudent driver
Salmon LJ(dis): o A motoring duty of care springs from relationship which a passenger gets in the car
? If the driver is a learner, this cannot entitle a passenger or instructor to expect the driver to discharge a duty of care or skill
which the passenger (not a pedestrian or other road user) knows the driver is incapable of discharging.
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