breach of duty 2

Question 1

Phillips v William Whitely (1938)

Answer 1

The claimant got sick after having her ears pierced by the defendant. The court ruled that the defendant wasn’t responsible because they were expected to have the skill of an ear piercer, not a medical professional. The defendant met the expected standard of care and skill for an ear piercer, so they weren’t negligent. In simpler terms, the defendant did the piercing as well as expected for someone with their training, so they weren’t held accountable for the illness the claimant suffered.

Question 2

good practice
Thompson v Smiths Ship Repairers Ltd (1984)

Answer 2

If a defendant complies with accepted and current good practice this may be evidence of acting within the relevant duty of care.
- the defendant employer did not provide ear protectors to their employees. This was held not to amount to a failure to take reasonable care until they had been alerted to ensure the workers used them via a government circular.

Question 3

Unhappy Outcomes
- Luxmoore May v Messenger May Bakers (1990)

Answer 3

• Even though all reasonable care has been taken, the claimant may still suffer damage. Proof of damage to the claimant does not necessarily prove the defendant failed to take reasonable care.
• the defendants were auctioneers who failed to correctly value two paintings owned by the claimant. As a result, the claimant lost money when they were sold. It was held the claimants had failed to prove that the defendants had acted without reasonable care i.e., a competent valuer could have made the same mistake.

Question 4

The burden of proof in negligence and ‘res ipsa loquitur’ (the thing speaks for itself)

Answer 4

In negligence cases, the usual rule is for the claimant to prove their case with more likely than not evidence. Yet, if ‘res ipsa loquitur’ applies, the burden shifts to the defendant. This doctrine allows negligence to be presumed from the circumstances, changing the burden of proof. The defendant must then prove they weren’t negligent by explaining how the accident occurred without their fault, reversing the usual responsibility from the claimant to the defendant to show they weren’t at fault.

Question 5

Scott v London and St Katherine Docks Co [1885]

Answer 5

– the claimant, a dockworker, was injured when large heavy bags of sugar fell from the open door of the defendant’s warehouse. It was held that the doctrine of res ipsa loquitur applied, i.e., the bags of sugar could not have fallen from the door of the warehouse without fault on the part of the defendant. The defendant was liable for the claimant’s injuries.