Breach of Duty

Question 1

Burden of proof

1. USUAL/COMMON PRACTICE
   - What does D have to show?
   - Bolam
   - Maynard v West Midlands Regional HA
   - Re Herald of Free Enterprise

Answer 1

• Burden of proof is on the claimant to prove on the balance of probabilities that D breached his duty.
• D has to show they acted in accordance with a practice usually followed by others in that field. They might then escape liability.
• Bolam test - professional will meet standard of care of the profession if he can show he acted in accordance with reasonable body of men skilled in that profession.
• Maynard - doctor who acted in accordance with common practice adopted by reasonable body of medical practitioners was held not to have been negligent.
• Herald - the court can always rule that the common practice ITSELF is negligent.

Question 2

2. LIKELIHOOD OF HARM
   - What does this mean?
   - Bolton v Stone
   - Pearson v Lightning
   - Hayley v London Electricity Board

Answer 2

• The more likely someone is to get injured, the more likely there is to be a breach.

Bolton

• Claimant injured by cricket ball but was out of cricket ground. 17ft high fence.
• This had only happened 6 times in 30 years.
• Chances were so slight that there was no breach of duty.
• Reasonable man does not have to take precautions against every risk, only those reasonably likely to happen.

Pearson

• Golfer whose ball bounced off tree hit another player.
• Liable.
• In the circumstances it was foreseeable that C might be injured if the difficult shot D was playing went wrong.
• Risk of injury was not so slight that reasonable person would not have anticipated it.

Hayley

• Blind claimant fell down hole dug by D.
• Adequate precautions had been taken to protect sighted but not blind people.
• Risk of injury to blind people NOT so small it should be ignored.
• D should tailor actions to those he think might be affected.

Question 3

3. MAGNITUDE OF HARM

What does this mean?

Watson v British Boxing Board of Control

Paris v Stepney Borough Council

Answer 3

The more serious the injury that might occur, the greater the care that is needed.

Watson:

• D was controlling body regulating professional boxing.
• C suffered brain damage after fighting Chris Eubank.
• Resus equipment and doctors should have been available ringside.
• Brain damage was one of the most serious risks associated with the sport.

Paris:

• If D is aware that C is less able to take care of himself/is at greater risk, they should take greater care.
• Ds knew C only had one eye, should have taken greater care to make sure he wore protective goggles.

Question 4

4. COST/PRACTICALITY OF PRECAUTIONS

What does this mean?

Latimer v AEC Ltd

Bottomley v Secretary and Members of Todmorden Cricket Club

Payling v Naylor

Answer 4

• How easily could the risk have been avoided? Balance the cost and practicality against the severity of the risk.
• Court will not impose liability if it is unreasonable to require them to take necessary precautions.

Latimer:

• D’s factory floor became slippery due to flood.
• Put straw down.
• C slipped on it.
• Other options would be to shut the factory or employ more people to mop up.
• Neither of these is practical/justified given the small risk of injury to C.

Bottomley:

• D cricket club liable to claimant who had been injured by fireworks display on club’s land.
• Club engaged services of independent contractor to present the display but no precautions in ensuring contractor had safety plans and public liability insurance.

Payling:

• C ejected from nightclub by doorman employed by security firm and suffered serious head injuries.
• Claim failed - D not obliged to check the contractor’s insurance position.

Question 5

5. UTILITY OF ACTION

What does this mean?

Watt v Hertfordshire County Council

Ward v London County Council

Answer 5

• If D has taken a risk with aim of preserving life, limb, property - this may be justified and will not constitute breach of duty.
• Potential benefits to safety are weighed against possible damage.

Watt:

• Fireman injured in fire engine on way to answer emergency call.
• Equipment not properly secured.
• No breach by fireman’s employer. Risk of injury was so small and ultimate aim of saving life justified taking the risk.

Ward:

• Jumping a red light is not a justified risk to take.
• Risk of injury to C was too high even though case involved emergency services.

Question 6

Compensation Act 2006, section 1

Social Action, Responsibility and Heroism Act 2015

Answer 6

• Allows courts to consider deterrent effect of potential liability on socially desirable activities.
• When asking if D should have taken particular steps, court can consider:
  1. if the steps would prevent desirable activity from being undertaken to an extent/at all.
  2. discourage persons from undertaking functions in connection with desirable activity.

Question 7

Res Ipsa Loquitur

Scott v London and St Katherines Docks & Co

Answer 7

Res Ipsa

• Maxim means ‘the facts speak for themselves’.
• Used where the only plausible explanation for C’s injuries is that D has been negligent.
• Helps claimants who have difficulty proving how the accident occurred.

Scott: C injured when sack of sugar fell on her. Could not explain how this happened, but sacks in D’s control - court inferred accident due to D’s lack of care. Sacks did not fall by themselves.

• Accident must be kind that would not usually happen without negligence.