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State and territory legislation sets out the principles for assessing whether a defendant has taken reasonable care or breached of a duty of care. The principles are consistent with those established by the courts.
An example is section 5B of the Civil Liability Act 2002 (NSW). This section says says that a person is not negligent in failing to take precautions against a risk of harm unless:
- the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known), and
- the risk was not insignificant, and
- in the circumstances, a reasonable person in the defendant's position would have taken those precautions.
Obviously, much depends on who the reasonable person is supposed to be. Even if we begin with the proposition that a reasonable person is an ordinary, average person, we must still ask what knowledge, skills or attributes such an average person should be taken to have. Should they be thought of as having the same knowledge, skills or attributes as the defendant? Or should the concept be completely objective so that no account is taken of any special knowledge, skills or attributes the defendant may have? The discussion follows will help you to answer this question. Click here to see a list of the relevant legislation.
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