Contemporary Australian Tort Law

Once the plaintiff has established that the defendant owed him or her a duty of care, the next question is whether the defendant breached that duty of care. In its broadest terms, breach is about whether the defendant has engaged in negligent conduct, which can be understood as failing to take the precautions against certain risks of harm that the reasonable person, in the circumstances, would have taken.

So how do we work out which precautions the reasonable person would have taken in the circumstances? This analysis has two main parts:

1. (1) A court determines the qualities of the reasonable person against whom the behaviour of the defendant will be compared.

2. (2) The court then decides what that reasonable person would have done if placed in the same circumstances the defendant was in.

   What the defendant actually did or did not do is then compared to that standard of expected carefulness. If the defendant’s conduct was less careful than what the court decides the hypothetical reasonable person would or would not have done, the defendant is said to have fallen below the standard of care expected of them and will have breached their duty of care.