Breach of duty

Question 1

What are the two stages for determining whether D has breached their duty?

Answer 1

(i) establishing the standard of care expected by the defendant; and

(ii) examining whether the defendant has fallen below that standard of care

Question 2

What is the general rule for breach of their duty?

Answer 2

The general rule is that a defendant must behave as a reasonable person would in all the circumstances.

Question 3

How is breach assessed for professionals?

Answer 3

• Where the act being carried out is one which would ordinarily be carried out by a professional, the standard is based on what the reasonable professional in that field would have done.
• No allowance will be made for a defendant being junior / inexperienced in a particular field.

Question 4

How is breach assessed for children?

Answer 4

• Children need only reach the standard of a reasonable child of their age.

Question 5

Can the standard for breach be adjusted?

Answer 5

The standard required may be adjusted in certain circumstances to take into account sudden illness / disability which the defendant was reasonably unaware of

Question 6

The most important thing to learn from Nettleship v Weston is that:

Answer 6

A person will be required to meet the standard appropriate for the act they are carrying out.

In Nettleship v Weston the court held that a learner driver was required to meet the standard of the ordinarily competent driver. No allowance was made for her lack of driving experience.

Question 7

What do the court consider when assessing whether defendant has fallen below that standard of care?

Answer 7

The court consider all the circumstances of the case including:
The likelihood of harm
The magnitude of harm
The practicality of precautions
Any benefit of the defendant’s conduct
Common practice
The ‘state of the art’ at the time of breach
Special rules in relation to sport

Question 8

What is the state of the art defence?

Answer 8

The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.

Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be regarded as negligence.

Question 9

How is sport assessed as a factor for standard of care?

Answer 9

nothing short of reckless disregard for the claimant’s safety would constitute a breach

Question 10

What is the burden of proof?

Answer 10

The claimant must prove breach on the balance of probabilities.

Question 11

What can C rely on?

Answer 11

he claimant may be helped by relying on a relevant criminal conviction or in very limited circumstances, by the maxim res ipsa loquitur (the facts speak for themselves).

Question 12

What is the starting point for the professional standard of care?

Answer 12

the starting point for determining whether the defendant has fallen below this standard is the Bolam Test.
* Bolam established that professionals are not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
* However, the court can find a professional negligent if it concludes that the ‘practice accepted as proper’ does not withstand logical analysis.
* Knowledge can change quickly in professional areas, and the court must determine how up to date a defendant should be.
* Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

Question 13

What are doctors supposed to do when advising in relation to gifts?

Answer 13

Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.

Question 14

A father has recently become reconciled with his daughter after a long period of estrangement. As a result, he makes an appointment with his experienced solicitor to amend his will to include a legacy of £100,000 to his daughter. He sees a trainee solicitor instead and instructs him accordingly. One month later, the father dies of a sudden heart attack. Due to pressure of work, the trainee solicitor had not amended the will.

Which of the following statements best describes the standard of care owed by the trainee solicitor?

The standard of care is that of the reasonable man as the trainee solicitor was not professing to be a qualified solicitor.

The standard of care is that of an experienced private client solicitor as an experienced solicitor should have been overseeing the trainee solicitor.

The standard of care is that of a reasonably competent solicitor.

The standard of care is that of the ordinary reasonable man exercising and professing to be a private client solicitor.

The standard of care is that of a reasonably competent trainee solicitor.

Answer 14

The standard of care is that of the ordinary reasonable man exercising and professing to be a private client solicitor.

Correct. The standard for a professional is the standard of the ordinary reasonable man exercising and professing to have that special skill, which on the facts is that of a qualified private client solicitor (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). It is irrelevant that the person conducting the work was a trainee solicitor as the standard of care is objective and attaches to the ‘act not the actor’ (Wilsher v Essex Area Health Authority [1987] QB 730).
While the other answer options might sound plausible, they are each incorrect.
As mentioned above, it is irrelevant that the person conducting the work was a trainee solicitor as the standard of care is objective and attaches to the ‘act not the actor’ (Wilsher v Essex Area Health Authority [1987] QB 730). Here the act was the act of a solicitor (drafting wills).
It is not incorrect to say that the standard would be that of a reasonably competent solicitor, but it is more accurate to say that of a reasonably competent private client solicitor. Solicitors specialise in particular areas of law and the courts will be concerned with what a reasonable body of private client solicitors would have done, in the same way that the courts differentiate between, for example, GPs and surgeons.
It does not matter that a more experienced solicitor should have been overseeing the trainee solicitor. It is the trainee solicitor that has potentially been negligent and he will be judged by the standard of a qualified solicitor (see above). In any event, level of experience is not really relevant to standard of care as the person need not possess the highest expert skill at the risk of being found negligent. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular profession.

Question 15

A footballer attends hospital seeking medical treatment for his injured knee. The doctor recommends surgery. The footballer is asked to sign a consent form before the procedure, which he does. The footballer does not ask, and is not told, of the risks of the surgery. In fact, there is a 1% risk of permanent nerve damage. The operation is carried out without error by the doctor. The footballer develops permanent nerve damage and can no longer play football.

Which of the following best explains the legal position in relation to the potential breach of duty by the doctor?

The doctor had a duty to inform the footballer of all material risks of the surgery. The 1% risk may be small, but it would still be material to a footballer. The doctor is in breach of duty.

A doctor has a duty to inform a patient of any risk over 10%. As the risk of permanent nerve damage was only 1%, the doctor has not breached his duty of care.

The doctor performed the surgery without error and so there is no breach of duty. Further the footballer did not ask about the risks of the surgery and there was therefore no duty on the doctor to inform him of such a small (1%) risk.

The footballer will have to show that a reasonable body of medical men carrying out this medical procedure would have informed him of the 1% risk of nerve damage. If this is established the doctor will have breached his duty of care.

As the footballer freely signed the consent form before the surgery, there can be no breach of duty for failure to advise on the 1% risk of nerve damage.

Answer 15

The doctor had a duty to inform the footballer of all material risks of the surgery. The 1% risk may be small, but it would still be material to a footballer. The doctor is in breach of duty.

Correct. A doctor owes a duty to inform a patient of all material risks associated with a procedure and of all reasonable alternatives (Montgomery v Lanarkshire Health Board [2015[ SC). The test of materiality applies and requires a doctor to consider what the particular patient would consider material and what a reasonable person in the patient’s position would consider material. In this case a footballer would clearly consider permanent nerve damage a material risk and he should have been informed of this.
While the other options might sound plausible, they are each incorrect, which should be self-explanatory following the feedback above on why this answer was correct. Montgomery v Lanarkshire Health Board [2015[ SC confirms that the Bolam test has no application to a failure to warn of the risks.

Question 16

A receptionist at a car factory would occasionally walk pass other employees whilst they were working with spray paint. Those working with the spray paint were provided with masks as the employer was aware of the risk of lung cancer from prolonged exposure to the paint. The receptionist contracts lung cancer. Since the receptionist was diagnosed, medical science has concluded that even occasional exposure to the paint increases the risk of lung cancer.

Which of the following statements best describes breach of duty in relation to the employer?

A reasonable employer would have provided all employees with any level of exposure to the paint with masks, given the magnitude of potential harm and the ease of precautions, and is thus in breach of duty.

A reasonable employer would not have known that there was a danger to those who did not have prolonged exposure to the paint, and therefore failure to take precautions against such exposure was not a breach of duty.

A reasonable employer would not have taken precautions (provision of face masks) as this was disproportionate to the likelihood of harm. The exposure was therefore not in breach of duty.

A reasonable employer may not have been able to foresee the likelihood of harm, but given there was some knowledge of the risk of lung cancer and given the ease of precautions (provision of face masks for all employees exposed to the paint), the exposure was in breach of duty.

A reasonable employer would not have taken precautions against such exposure as the risk of lung cancer was so low. Such exposure was therefore not in breach of duty.

Answer 16

A receptionist at a car factory would occasionally walk pass other employees whilst they were working with spray paint. Those working with the spray paint were provided with masks as the employer was aware of the risk of lung cancer from prolonged exposure to the paint. The receptionist contracts lung cancer. Since the receptionist was diagnosed, medical science has concluded that even occasional exposure to the paint increases the risk of lung cancer.

Which of the following statements best describes breach of duty in relation to the employer?

A reasonable employer would have provided all employees with any level of exposure to the paint with masks, given the magnitude of potential harm and the ease of precautions, and is thus in breach of duty.

A reasonable employer would not have known that there was a danger to those who did not have prolonged exposure to the paint, and therefore failure to take precautions against such exposure was not a breach of duty.

A reasonable employer would not have taken precautions (provision of face masks) as this was disproportionate to the likelihood of harm. The exposure was therefore not in breach of duty.

A reasonable employer may not have been able to foresee the likelihood of harm, but given there was some knowledge of the risk of lung cancer and given the ease of precautions (provision of face masks for all employees exposed to the paint), the exposure was in breach of duty.

A reasonable employer would not have taken precautions against such exposure as the risk of lung cancer was so low. Such exposure was therefore not in breach of duty.

Correct. The courts must assess the defendant’s actions against the knowledge in the industry at the time of the alleged breach (at the time the receptionist was exposed to the paint). This is known as the ‘state of art’ defence (Roe v Minister of Health [1954] 2 QB 66). The employers did not know about the risk of lung cancer from occasional exposure to the paint at the time of the breach and would not, therefore, be expected to take precautions against an unknown risk.
While the other answer options might sound plausible, they are each incorrect.
Whilst the courts will balance likelihood of harm against practicality of precautions when assessing breach (Wagon Mound (No. 2) [1967] 1 AC 617), there must be some foreseeability of harm in order for there to be a breach (Bolton v Stone [1951] AC 850) and there was none here.
As above, whilst the courts will balance magnitude of harm against practicality of precautions when assessing breach (Wagon Mound (No.2) [1967] 1 AC 617), the magnitude of harm must be foreseeable (Paris v Stepney Borough Council [1951] AC 367) in order for there to be a breach and it was not here.
The risk of lung cancer was not low. It was not known at all (in relation to occasional exposure).
Taking precautions against an unknown risk would be considered disproportionate (Latimer v AEC Ltd [1953] AC 643) but there was no foreseeable likelihood of harm.

Question 17

A householder carries out some trivial repair work on her property, including the door handle on her front door. The handle has not been fixed properly. When the householders’ friend comes over, he pulls the handle and it comes off in his hand. He falls backwards and sprains his wrist.

Which of the following statements best describes the standard of care owed by the householder?

The standard of care expected of the householder would be that of a reasonably competent carpenter.

The standard of care expected of the householder would be that of a reasonably competent amateur carpenter.

The standard of care expected of the householder would be that of a reasonable homeowner.

The standard of care expected of the householder would be that of a reasonably competent professional carpenter.

The standard of care expected of the householder would be that of the reasonable person.

Answer 17

The standard of care expected of the householder would be that of a reasonably competent amateur carpenter.

Correct. The standard of care is determined by the act, not the actor, and here the householder was carrying out trivial repair work. The facts are actually very similar to a case Wells v Cooper [1958] 2 QB 265 in which the defendant fixed his doorknob. When the claimant opened the door, the doorknob came away from the door and the claimant slipped, fell and injured himself. There were two standards to choose from, that of the reasonably competent professional carpenter and that of the reasonably competent amateur carpenter. The Court of Appeal held the defendant to the standard of the reasonably competent amateur carpenter, which was lower than the standard expected of a professional. The job in question was a trivial domestic replacement. Had the job been something more ambitious, the standard might have been different.
While the other answer options might sound plausible, they are each incorrect.
Given that the householder was carrying out trivial repair work, it would not be appropriate to hold her to the professional standard. It is unlikely that special skills and expertise were needed.
It is not incorrect to say that the householder would be held to the standard of the reasonable person, but it is more accurate to say that of the reasonably competent amateur carpenter. The standard of care attaches to the act (Wilsher v Essex Area Health Authority [1987] QB 730).
The same reasoning applies to the inaccuracy of a reasonable householder. This is too broad.
It is important to make it clear whether the standard is amateur or professional, as this will affect whether or not there has been a breach of duty. Less will be expected of the amateur carpenter.

Question 18

A patient develops permanent spinal curvature after undergoing routine surgery to his back. The surgeon has used the ‘Slice and Dice’ technique which carries a 15% risk of spinal curvature. The newer ‘Plice’ technique, as very recently highlighted in ‘Cutting Edge Weekly’ medical magazine, carries only a 5% risk of spinal curvature. However, the surgeon was not aware of it.

Which of the following statements best describes breach of duty in relation to the surgeon?

It is unreasonable to expect the surgeon to have been up to date about the ‘Plice’ technique, when the ‘Splice and Dice’ technique has had an 85% success rate so far.

It is reasonable to expect the surgeon to keep up to date and informed about all innovations such as the ‘Plice’ technique, by whatever means necessary.

It would be unreasonable to expect the surgeon to have known about and implemented the new ‘Plice’ technique whilst conducting the routine back surgery. This was only recently featured in Cutting Edge magazine; it is a weekly magazine and is not a mainstream medical journal.

It is reasonable to expect the surgeon to keep up to date and he therefore should have used the ‘Plice’ technique. It was recently featured in ‘Cutting Edge Weekly’ magazine and it carries a 10% lower risk of spinal curvature.

It is reasonable to expect the surgeon to attempt to minimise all risk. As such the surgeon should have been aware and employed the ‘Plice’ technique as it was featured in ‘Cutting Edge Weekly’ magazine.

Answer 18

It would be unreasonable to expect the surgeon to have known about and implemented the new ‘Plice’ technique whilst conducting the routine back surgery. This was only recently featured in Cutting Edge magazine; it is a weekly magazine and is not a mainstream medical journal.

Correct. It would be unreasonable to expect the surgeon to know about every new medical development. The courts recognise that it would be too onerous to expect medics to have to keep up to date with all the very latest treatments and procedures pursuant to Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953. Nevertheless, they must take reasonable steps to ensure they are up to date with mainstream developments especially with the availability of information online (Gascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437). In addition, the name of the magazine suggests it is providing the very latest information, insights and innovations in the medical field rather than being a mainstream journal. The fact that it is a weekly journal means that it might be burdensome to expect a medic to keep up with the pace of a weekly journal.
While the other answer options might sound plausible, they are each incorrect.
Medics must take reasonable steps to ensure they are up to date with mainstream developments (Gascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437) but it is too onerous to expect medics to keep up to date with all the very latest treatments (Crawford v Governors of Charing Cros Hospital, The Times, December 8, 1953).
It would be unreasonable and too onerous to expect a medic to keep up to date with the very latest innovation and to have to implement this new ‘Plice’ technique, as proposed or highlighted in the weekly magazine, in particular, one labelled ‘Cutting Edge’ (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953). So although it is correct to state that the surgeon does not have to keep up to date with the new ‘Plice’ technique, the reasoning i.e. that the other has a 85% success rate, is incorrect.
It is correct to state that surgeon should attempt to minimise all risk, however, it would be unreasonable and too onerous a burden to expect the surgeon to keep up to date with the very latest innovation and to have to implement this new ‘Plice’ technique, as proposed or highlighted in the weekly magazine, in particular, one labelled ‘Cutting Edge Weekly’ (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953).
The surgeon should keep up to date with all mainstream developments perGascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437); but to expect the surgeon to have implemented the latest ‘Plice’ technique, despite it carrying a lower risk, would be unreasonable and too onerous a burden (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953). The comment that the surgeon should be up to date by whatever means necessary is not a legal requirement.

Question 19

A university researcher prepares a report on fast growing new businesses. The report is prepared for the university’s own internal use and for the local Chamber of Commerce. An investor visiting the Chamber of Commerce picks up a copy of the report and decides to invest in one of the new businesses, which is described as ‘solvent, fast growing, and a risk-free investment’. The business fails miserably, and the investor loses all their money.

The investor is furious and takes advice from a solicitor as to a potential action against the university researcher for negligence.

Which of these statements is the best legal advice about whether or not the university researcher will owe the investor a duty of care?

The investor is likely to be owed a duty of care because they will be able to show reasonable reliance on the report, supported by the university lecturer’s special expertise in this area.

The investor is likely to be owed a duty of care because they will be able to show that it was reasonable for them to rely on the report, and that the university researcher knew or ought to have known that an investor would rely on that report.

The investor is likely to be owed a duty of care because the report was made for a similar purpose to that for which it was used.

The investor is unlikely to be owed a duty of care because they cannot show that they paid for the report in order to demonstrate that they relied on it.

The investor is unlikely to be owed a duty of care because they do not meet the criteria for an assumption of responsibility set out in Caparo

Answer 19

The investor is unlikely to be owed a duty of care because they do not meet the criteria for an assumption of responsibility set out in Caparo

Correct. This is a third-party case like Caparo, so it is likely the courts would apply the four criteria from this case for assumption of responsibility.

Question 20

An ex-employee asks their previous employer to give a reference to a potential future employer. The previous employer carelessly confuses its own records, and as a consequence, advises the potential future employer that the ex-employee had many unexplained days off work. This is inaccurate. As a result of this inaccuracy, the potential future employer decides not to employ the ex-employee, causing them (the ex-employee) financial loss.

Which of the following best summarises whether or not the ex-employee’s previous employer owes them a duty of care in relation to this loss, and why.

No duty of care is owed because the loss is pure economic loss.

There could be a duty of care owed to the ex-employee on the basis of the proximity between the previous employer and the ex-employer.

There could be a duty of care owed to the ex-employee on the basis that harm is clearly foreseeable.

There could be a duty of care owed to the ex-employee on the basis that the previous employer assumed responsibility to the ex-employee to exercise reasonable skill and care in the preparation of the reference when agreeing to provide it.

There is no duty of care owed to the ex-employee as the reference was provided to the potential future employer, not the ex-employee.

Answer 20

There could be a duty of care owed to the ex-employee on the basis that the previous employer assumed responsibility to the ex-employee to exercise reasonable skill and care in the preparation of the reference when agreeing to provide it.

Correct. This reflects Spring v Guardian Assurance.

Question 21

The thing speaks for itself?

Answer 21

The court held that the three conditions for the application of the maxim ‘res ipsa loquitur’
are:
*
The thing causing the damage must be under the control of the defendant or someone for
whom the defendant is responsible.
*
The accident must be such as would not normally happen without negligence.
*
The cause of the accident is unknown to the claimant – so that the claimant has no direct
evidence of any failure by the defendant to exercise reasonable care.

Question 22

What happens if D has a crime conviction?

Answer 22

The effect of s 11 of the Civil Evidence Act 1968 is that a defendant who has been convicted
of a criminal offence is presumed, in any subsequent civil proceedings, to have committed
that offence.
This statutory provision can help a claimant to prove that a defendant has fallen below a
reasonable standard of care where the offence of which the defendant has been convicted
involved careless conduct. The claimant can rely upon the conviction as evidence that this
careless conduct did take place. The claimant does not need to prove that behaviour again in
the civil proceedings.

However, this provision will not always be of assistance to the claimant. For example, if a
driver is convicted of driving without insurance, this does not provide the claimant with any
evidence that the defendant failed to drive carefully. The criminal conviction is not relevant to
the claim in negligence.

Question 23

Question 1
The claimant was injured in a road traffic accident and taken by ambulance to their
local hospital. The defendant (a newly qualified casualty doctor) who saw the claimant
incorrectly diagnosed the claimant as having merely a sprained ankle and sent her home.
In fact, the claimant’s ankle was broken in two places, and the failure to diagnose and
treat the injury lead to permanent limp, which the claimant would not have if the break had
been treated correctly.
Independent medical evidence has been obtained which shows that the breaks showed
quite clearly on the x- rays taken at the time.
Which of the following statements best explains whether the defendant breached the
duty of care that they owed the claimant in negligence?
A No, because the defendant is a conscientious and careful doctor who only missed
seeing the breaks on the X- rays due to the increased pressure of work and the fact that
ward was understaffed at the time.
B No, because the defendant had only just qualified and was performing as well as any
newly qualified doctor in their position.
C Yes, because the defendant was at fault for not identifying the broken ankle on the
X- rays.
D Yes, because the defendant failed to meet the standard of care expected of the
reasonably competent newly qualified casualty doctor.
E Yes, because the defendant failed to meet the standard of care expected of the
reasonably competent casualty doctor.

Answer 23

Answer
Option E is correct – the defendant would be measured against the standard of care
expected of the reasonably competent casualty doctor.
Option A is wrong because the standard of care expected is objective and impersonal. The
fact that the defendant was doing their best in difficult circumstances will not prevent them
from being in breach of their duty of care.
Option B is incorrect because no allowance is made for the inexperience of a junior doctor.
They are expected to show the level of competence befitting a doctor holding the same post.
Option C is not the best explanation as, while this may be true, it does not correctly state the
legal position whether the defendant has breached their duty of care.
Option D is also not the best explanation as, while the defendant may or may not have met
the standard of care expected of the reasonably competent newly qualified casualty doctor,
this is not the standard that the defendant would be measured against.

Question 24

Question 2
A man owns a house near to the boundary of his local cricket club. His garden boundary
is only 30 metres (100 feet) away from the cricket ground, and his house is only 18 metres
(60 feet) further away. Cricket balls have been hit onto his property 12 times in the last
12 months causing minor damage to his house.
The cricket club has a four- metre (13 feet) fence around the ground but have refused to
consider building a higher fence to prevent cricket balls from leaving the ground. The club
have stated that they do not have the money to fund the building of a newer fence. The
club have also stated that the man should appreciate that the playing of sport is a ‘good
thing’ and that he should simply put up with the risk of his house being hit by cricket balls
‘every now and then’.
Which of the following statements best describes whether a court would decide that the
cricket club have breached their duty of care in negligence?
A Yes, because the cricket club could reasonably foresee that the damage to the man’s
house was likely.
B Yes, because the cricket club could reasonably foresee that the damage to the man’s
house was likely and the cost of building a higher fence was reasonable in the
circumstances.
C Yes, because the cricket club could reasonably foresee that the damage to the man’s
house was likely and the public interest in the playing of sport is not a relevant
consideration.
D No, because, the cricket club could reasonably foresee that the damage to the man’s
house was likely but the cricket club did not have the resources to prevent the risk.
E No, because the cricket club could reasonably foresee that the damage to the man’s
house was likely and the court are bound by the fact that it is the common practice of
cricket clubs to have fences that are not higher than four metres.

Answer 24

Answer
Option B is correct – the court would consider the how likely the risk created by the club’s
activities was and what reasonable precautions should be taken to eliminate the risk.
OptionA is wrong because it fails to appreciate what precautions the club ought to reasonably
have taken in response to a foreseeable risk.
Option C is wrong as the public interest in the activities undertaken by the club is a relevant
consideration.
Option D is wrong as, if the court were to decide that it was reasonable to build a higher
fence, the lack of resources of the club are not generally a relevant consideration.
Option E is wrong as, while the court do consider common practice, it is not conclusive and
the court can ignore it if the practice was considered to be negligent.

Question 25

Question 3
A defendant is being sued for damages arising out of a road traffic incident. The allegation
is that the defendant failed to wait at a ‘Give way’ sign and pulled out into the path of the
claimant at a road junction. The claimant was riding a bicycle and suffered a broken collar
bone as a result of falling off their bike while, the claimant alleges, swerving to avoid the
defendant’s car. The defendant denies the allegations and believes that the claimant fell
off their bike because they were texting on a mobile phone.
The police attended the incident and the defendant subsequently received a fixed penalty
fine for driving a vehicle without road tax. The claimant’s solicitor has reported that they
have two independent witnesses who will support the claimant’s version of events. The
defendant’s solicitor has not been able to locate any witnesses to support the claimant’s
version of events.
Which of the following statements best explains why it is likely that the defendant would
be found to have breached their duty of care to the claimant?
A Because the claimant will be able to rely upon the criminal conviction.
B Because the defendant will not be able to prove on the balance of probabilities that
they did not fall below the standard of the reasonable driver.
C Because the claimant will be able to rely upon the maxim res ipsa loquitur as the
defendant was in control of the car and such incidents do not normally happen without
a defendant’s negligence.
D Because, on the balance of probabilities, the court is likely to decide that the claimant’s
evidence has proven that the defendant fell below the standard of the reasonable
driver.
E Because the claimant will be able to rely upon the maxim res ipsa loquitur as the
defendant was in control of the car, such incidents do not normally happen without a
defendant’s negligence and the cause of the accident is not known to the claimant.

Answer 25

Answer
Option D is correct as it recognises that the burden of proof is on the claimant to prove
breach of duty and that the issue will be decided on the basis of the available evidence.
Option A is wrong as, while a relevant criminal conviction can be relied upon to prove breach
of duty (eg dangerous driving), the defendant’s conviction for failing to purchase road tax is
not relevant as it does not involve careless driving as an element of the offence.
Option B is wrong because the burden of proof is on the claimant to prove their case. The
burden of proof only switches to the defendant if they raise any defences, eg contributory
negligence.
Option C is wrong because it does not set out all three conditions that are required to be
satisfied before the claimant can rely on the maxim res ipsa loquitur.
Option E is wrong as, while it sets out the necessary requirements of res ipsa loquitur, they are
not satisfied on the facts of the question. Such incidents do happen without any defendants
being negligent and the cause of the accident is known to the claimant as they have evidence
from independent witnesses of the defendant’s failure to comply with the ‘Give way’ sign.

Question 26

A woman is driving her car along a road when she sees the warning light indicating low engine oil light up. The woman stops the car at the side of the road and turns on the car’s hazard warning lights.

A passing motorist (‘the Motorist’) sees the woman’s car and stops to offer his assistance. The Motorist has some spare engine oil and the woman agrees that he should pour some of this into the woman’s car engine.

The oil warning light turns off and the woman assumes therefore that the car is fixed. She drives off but within 20 minutes her car engine seizes up, causing considerable damage to the car.

A garage carries out the repairs to the woman’s car. She is told that the Motorist has used the wrong type of engine oil and this has caused the engine damage.

The woman wishes to bring a claim in negligence against the Motorist. She seeks advice from a solicitor who believes that there are no similar precedents or comparable cases by which to establish whether the Motorist owes the woman a duty of care. The solicitor’s legal advice about what the court will consider is based on this belief.

What legal advice will the solicitor provide about what the court will consider when deciding whether the Motorist owes a duty of care in negligence to the woman?

A. Solely whether the Motorist could reasonably foresee that harm would be caused to the woman’s property.

B. Solely whether the Motorist has a relationship of proximity with the woman and whether it is fair, just and reasonable to impose a duty on him.

C. Solely whether the Motorist could reasonably foresee that harm would be caused to the woman’s property and whether he has a relationship of proximity with her.

D. Whether the Motorist could reasonably foresee that harm would be caused to the woman’s property, whether he has a relationship of proximity with her and whether it is fair, just and reasonable to impose a duty on him.

E. Solely whether it is fair, just and reasonable to impose a duty on the Motorist to the woman.

Answer 26

D - Whether the Motorist could reasonably foresee that harm would be caused to the woman’s property, whether he has a relationship of proximity with her and whether it is fair, just and reasonable to impose a duty on him.