Negligence - Breach

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4 Terms

1
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Point 1

P) Clash of subjectivity v objectivity
D)Reasonable test is objective Blyth but characteristics of D make it subjective Paris, Mullin
D+)Ultimatley holding them accountable is public policy as it keeps public safe
D++) Can be seen as harsh eg Nettleship v Weston

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Point 2

P) Reasonble person test perhaps unclear
D) Some argue it’s sexist as it takes a male pov rather than a statistical exercise it’s a judicial construct
D+) Lack of diversity in judges may lead this to be a bias point of view and therefore unfair
D++) Can adapt the living instruments principle and develop with society Montgomery

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Point 2

P) Balancing of competing factors is not always easy
D) Wier argues that ‘decisions are not authorities just mere illustrations’ as judges may have different opinions Barnes v Scout
D+) Measure of risk will change over time which is good for society but creates uncertainty Coles v Gilbert- Davies

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Point 4

P) No allowance made for professional no matter how experienced they are might seem harsh Wilsher
D) But there’s a benefit for D as they are allowed a diversity of opinion Bollam but simultaneously courts can reject this Bolithio
D+) This complies with public policy as professionals are not made to be above the average person