ABSTRACT
J Understand the factors used in determining whether a defendant has fallen below the standard of care appropriate to the duty owed
if a breach has occurred
3.1.1 The standard of care We have already seen how negligence occurs where a person owing a duty of care to another person breaches that duty and causes damage which is not too remote a consequence of the breach of duty. Breach of duty, the second element of negligence, actually refers to the standard of care that is appropriate to the duty owed. A breach of duty simply occurs when the party owing the particular duty falls below the standard of behaviour that is required by the particular duty in question. The judge in the case will determine the standard of care and whether or not the defendant’s behaviour has fallen below that standard according to established tests. While the standard of care in any situation is a question of law, whether or not the defendant has fallen below the standard is a question of fact that will be determined by reference to all of the circumstances of the case.
