BUSINESS LAW 1
NEGLIGENCE BREACH OF DUTY OF CARE
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Content of this class
1. Definition of breach.
2. Factors considered in assessing
breach.
3. Burden of proof - Res Ipsa Loquitur.
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Blyth v Birmingham Waterworks
Defendant breaches duty if he:
i. Fails to do something which a reasonable
man
ii. Guided upon those considerations which
ordinarily regulate the conduct of human
affairs would do; or
iii. Does something which a prudent and
reasonable man would not do.
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An objective test
So…
Would the reasonable man have acted
as the defendant did?
i. If yes, no breach.
ii. If no, breach.
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FACTORS CONSIDERED IN
ASSESSING BREACH
1. Likelihood of Injury.
2. Seriousness of Risk.
3. Cost and Practicability.
4. Social Utility.
4. Common Practice.
6. Conduct of Skilled Persons.
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Likelihood of Injury
Degree of care must be balanced against degree
of risk involved if defendant fails in his duty.
Bolton v Stone [1951]
Seriousness of Risk
Degree of care to be exercised by defendant may
be increased if claimant very young, old or less
able bodied in some way.
Haley v London Electricity Board [1965]
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See also the following cases:
Gough v Thorne [1966]
Daly v Liverpool Corp. [1939]
Paris v Stepney BC [1951]
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Cost and Practicability
Court will consider cost and practicability to
defendant of overcoming risk to claimant.
Foreseeable risk has to be balanced against
measures necessary to eliminate it.
Latimer v AEC [1952]:
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Social Utility
Degree of risk has to be balanced against
importance of defendant’s activity to
community.
If activity of particular importance to society
then
taking of greater risks by defendant may not
result
in breach of duty.
Watt v Hertfordshire CC [1954]
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Common Practice
If defendant can show what he did is
common practice then this is
evidence that duty of care has not
been breached.
Paris v Stepney BC [1951]
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Conduct of Skilled Persons
Standard of care to be exercised by skilled
person judged against what ordinary
skilled person in same job would have
done.
Skilled person judged on standard of
knowledge possessed by profession at
time accident occurred.
Roe v Minister of Health [1954].
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BURDEN OF PROOF – RES IPSA LOQUITOR
Res Ipsa Loquitur doctrine (‘the thing speaks for
itself’).
Burden of proof will be reversed if courts can
infer negligence must have taken place from
facts.
In this situation it will be for the defendant to
demonstrate that there has been no
negligence on his part.
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1.Cause of accident must be unknown and
impossible to discover;
2.The only way in which the accident could have
happened was through negligence.
Mahon v Osborne (1939)
3.The defendant must have had control of the
situation.
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