TORTS
1) Negligence (Duty of Care)
A plaintiff may sue a defendant for his negligent actions in tort by demonstrating the defendant’s
duty of care, breach of that duty, causation and damages. The defendant’s duty of care depends on
the situation involved. It requires that the defendant conforms to the standard of care expected of a
reasonable person in the defendant’s position. Such duty extends to foreseeable plaintiffs. One’s
duty of care may be examined based on two requirements; his standard of care and foreseeability of
the plaintiff.
Firstly, a defendant’s standard of care is based objectively; whether the defendant acted as a
reasonable person would have done so. The standard of care is generally based on a reasonable
person who shares the same physical characteristics and superior knowledge or skill as the
defendant, known as the ‘reasonable prudent person’ standard of care. For example, if a man with a
broken arm committed injury to another by accident, would a reasonable person with a broken arm
have done the same? If a man who is specialised in banking committed damages towards another by
accident, would a reasonable person with banking knowledge done the same? However, a
defendant’s mental deficiencies will generally not be taken into account. Ultimately, the burden of
proof will be on the plaintiff, but only by a preponderance of evidence.
However, the defendant’s common standard of care may vary as common law extends his standard
depending on the status of the defendant. For instance, professionals are expected to act in the same
line as others with the same expertise, experience and in good standing in a similar community.
Thus a national standard will apply for that speciality.
Whereas doctors should also act as doctors would be based on either the national or state standard
(some states). But doctors may only be liable for failing to disclose risks before treating a patient if
that patient would have withheld his consent to the treatment because the risk was so serious. Thus,
if a doctor performed surgery on a patient and the patient found out the doctor failed to notify him
of the potential risk of hallucinating but the patient would have consented to the surgery anyway,
the doctor has not breached his duty of care.
A child’s duty of care will be lower than that of adults, in that a child must act as a reasonable child
would with the same age, intelligence and experience. In this case, the standard is subjective rather
than objective. A child under the age of five will not be expected to owe a duty of care. But his duty
of care will increase to the adult standard if he engages in an adult-related activity, such as driving a
car. For instance, if the child drives a car and crashes into a pedestrian because he failed to see the
red light, the child cannot argue that he was not aware that a red light requires him to brake as his
duty will be expected of an adult who would be aware of such trafficking laws. But if a child threw
a ball at someone and hurt him, the child cannot be sued because an adult would not have thrown a
ball at him as he should be judged by the actions of a reasonable child instead.
For common carriers and innkeepers, their standard of care will be significantly higher. However,
such care is only owed to guests and passengers. For example, an amusement park is not expected
to owe a duty to someone who tried to get on a ride without authorisation, but did not. A hotel
owner does not owe a duty to someone trespassing and staying in one of the rooms without
permission.
1) Negligence (Duty of Care)
A plaintiff may sue a defendant for his negligent actions in tort by demonstrating the defendant’s
duty of care, breach of that duty, causation and damages. The defendant’s duty of care depends on
the situation involved. It requires that the defendant conforms to the standard of care expected of a
reasonable person in the defendant’s position. Such duty extends to foreseeable plaintiffs. One’s
duty of care may be examined based on two requirements; his standard of care and foreseeability of
the plaintiff.
Firstly, a defendant’s standard of care is based objectively; whether the defendant acted as a
reasonable person would have done so. The standard of care is generally based on a reasonable
person who shares the same physical characteristics and superior knowledge or skill as the
defendant, known as the ‘reasonable prudent person’ standard of care. For example, if a man with a
broken arm committed injury to another by accident, would a reasonable person with a broken arm
have done the same? If a man who is specialised in banking committed damages towards another by
accident, would a reasonable person with banking knowledge done the same? However, a
defendant’s mental deficiencies will generally not be taken into account. Ultimately, the burden of
proof will be on the plaintiff, but only by a preponderance of evidence.
However, the defendant’s common standard of care may vary as common law extends his standard
depending on the status of the defendant. For instance, professionals are expected to act in the same
line as others with the same expertise, experience and in good standing in a similar community.
Thus a national standard will apply for that speciality.
Whereas doctors should also act as doctors would be based on either the national or state standard
(some states). But doctors may only be liable for failing to disclose risks before treating a patient if
that patient would have withheld his consent to the treatment because the risk was so serious. Thus,
if a doctor performed surgery on a patient and the patient found out the doctor failed to notify him
of the potential risk of hallucinating but the patient would have consented to the surgery anyway,
the doctor has not breached his duty of care.
A child’s duty of care will be lower than that of adults, in that a child must act as a reasonable child
would with the same age, intelligence and experience. In this case, the standard is subjective rather
than objective. A child under the age of five will not be expected to owe a duty of care. But his duty
of care will increase to the adult standard if he engages in an adult-related activity, such as driving a
car. For instance, if the child drives a car and crashes into a pedestrian because he failed to see the
red light, the child cannot argue that he was not aware that a red light requires him to brake as his
duty will be expected of an adult who would be aware of such trafficking laws. But if a child threw
a ball at someone and hurt him, the child cannot be sued because an adult would not have thrown a
ball at him as he should be judged by the actions of a reasonable child instead.
For common carriers and innkeepers, their standard of care will be significantly higher. However,
such care is only owed to guests and passengers. For example, an amusement park is not expected
to owe a duty to someone who tried to get on a ride without authorisation, but did not. A hotel
owner does not owe a duty to someone trespassing and staying in one of the rooms without
permission.
