B what is negligent conduct how do we decide whats a

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(b) What Is Negligent Conduct? How do we decide what’s a breach? The common law expresses it like this: ‘ Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do. Or doing something which a prudent and reasonable man would not do.’ So a breach or negligence is acting differently to the reasonable man, do something a reasonable person wouldn’t or don’t do something a reasonable person would. If act differently then in breach. No question of a degree- either are negligent or aren’t. P needs to prove the d failed to do or did do the opposite of a reasonable man would do. In Aus, they’ve decided that parliament can do it better than the courts so amended our legis to include new sections dealing with negligence law. Many of those sections repeat what the common law says. Have s43 which says negligence means a failure to exercise reasonable care. Also have s48(1)(c): A person is not negligent in failing to take precautions against a risk of harm unless: in the circumstances a reasonable person in the person’s position would have taken those precautions- Have to show the d has behaved different to the reasonable person . How do you know what a reasonable person would do? Is it enough that the d did their best? Tried their very hardest, are they still negligent? o Blyth v Birmingham Waterworks Co (1856): The defendants installed a fire plug near the plaintiff’s house that leaked during a severe frost, causing water damage. The jury found the defendant negligent, and the defendant appealed. Issue: Were the defendants negligent? Rule: The defendants are negligent only if they fail to do what a reasonable person would have done or do something a reasonable person would not have done. Analysis: The court found that the extreme frost that caused the damage in this case was not within the contemplation of the defendants and that the result of the frost was an accident. Conclusion: The court entered a verdict for the defendants. Notes and Questions: 1. Based on the present case, the defendant is not liable because the defendant’s conduct was reasonable under the circumstances. 2. The contractor is not required to take precautions in Chicago, but is required to do so in San Francisco. It is a reasonable thing to do there. 3. In order to decide whether failing to plan for lightning is negligence, I would want to know how likely it is that lightning would strike each of these places, what measures can be taken to prevent harm from lightning, and how expensive those measures are in relation to the possible benefit that can be obtained from preventing such harm. Torts Lecture Notes 9
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(c) The ‘Reasonable Person’ (for the D) The required standard of care (reasonable care) is determined by reference to the standard of the ‘reasonable person’. What qualities of the actual defendant are taken into account in determining what the ‘reasonable person’ would or would not have done in the particular circumstances of the case?
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