Tort of negligence: Breach of duty.

See also: Tort of negligence: what is duty of care?

Breach is the second element that needs to be proven for a claim in negligence.  A breach or a breach of duty in simple term is “it should not have been done”.  What is meant by it that a person should not have done, or should HAVE done what was reasonably a right thing to do. A right thing can be anything that is expected of a person because it was his job or responsibility etc. For example, a bus driver must not drive under the influence of alcohol. If however he does so, it would not be a reasonable thing to do and will be regarded as a breach of duty if it leads to injury due to an accident.

How the court decides if an act or omission is a breach of duty or not? Whether an act or omission is a breach of duty is ascertained by applying the principle of a “reasonable person”. A reasonable person in law is a hypothetical common person who would have acted positively or would not have acted the way the defendant did. In another words, a reasonable person is someone who uses his common sense. The rule of a reasonable person is applied objectively.

Though a reasonable person is a common and average person, the bar can be raised if the person has specific skills and would be judged on the basis of that. For example, if a doctor has acted negligently, he would be judged on the skill set of a doctor. Similarly, a child would be judged differently than a grown up, and a disable person will be judged differently than someone acting in an emergency.

Likewise, standard of care can be expected according to what situation the defendant was in and how he should have acted. The bigger the impact, the bigger will be the expectation of standard of care.

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