Tort law: Negligence/duty of care and breach

Question 1

Name 7 factors that a test of breach of duty of care must entail

Answer 1

• It’s objective, from a reasonable bystander
• If one ‘fails to do something that a reasonable man would
  do/does something a reasonable man wouldn’t do.’
• Children should be judged on whether they have ‘the
  foresight of a normal child of that age’.
• The degree of risk involved should be considered. It
  increases if the claimant is young, old or disabled.
• The practicability of overcoming the risk.
• The social utility and importance of defendants utility
  e.g. if the activity may aid the community, greater risks
  may be justified depending on the circumstances.
• A skilled person must not be judged by a bystander, but
  by an ordinary skilled person in that profession

Question 2

Who is the “burden” of proof in establishing breach of duty on?

What is res ipsa loquitur?

Answer 2

On the claimant, but if this is accomplished, the burden is moved to the defendant, who must prove that the assumption of negligence is wrong. This is known as res ipsa loquitur, or “it speaks for itself”: The mere occurrence of some accidents is enough to prove negligence.

Question 3

When is res ipsa loquitur used?

What are the 2 criteria for this?

Answer 3

If the only explanation for the damage is negligence, but the claimant can’t prove the negligence

Criteria:
- Damage was caused by the defendant, or by someone/
something they have responsibility/control over.
- The only explanation for the damage is negligence. The
cause of the occurrence may still be unknown.

Question 4

Give the facts, arguments, and judgment of the “White v Jones” case

Answer 4

Facts:
A man and two daughters fought over the wife’s will. The man then left the daughters out of his own will. After reconciliation, the man instructed his solicitor to rewrite his will and leave each daughter £9000. When the man died 2 months later, the solicitors had not carried out the request. Daughters were given none of the estate.

Arguments:
The solicitor has a legal responsibility towards his client, which should extend to the intended beneficiary, who (as reasonably foreseen) would be deprived of inheritance , due to the solicitor’s negligence. It was suggested that the solicitors had a duty of care/‘assumption of duty’ to the plaintiffs, which stands under the law of negligence.

Negligence for purely economic loss under tort law is not covered in English law. However, duty of care does arise if there is a special relationship between parties, which arises if there is a fiduciary relationship, or if the appellant relies on the defendant’s skilled knowledge (and the defendant can reasonably foresee this reliance). This case does not fall into these categories of special relationship, however, when the solicitors agreed to carry out the request, they entered a special relationship based on the assumption of responsibility for the task.

Judgment:
The defendant’s appeal was dismissed, the daughters got their claim.

Question 5

Give the facts, arguments, legal question and judgment of the “Ward v Tesco” case.

Answer 5

Facts
Plaintiff slipped on something sticky on the floor of the defendant’s supermarket. Sustained minor injuries. Did not see what made her slip. Determined after the fall that the sticky substance was yoghurt. 3 weeks later while plaintiff was shopping, she saw that orange squash had been spilled on the floor of the defendant’s supermarket. She watched for around 15 minutes and no one cleaned it.

Arguments
The plaintiff was not considered negligent. Trial judge believed the facts warranted a prima facie case against the defendants. No evidence regarding when the floor was last cleaned before the accident. Those in charge of store knew of spillages occurring during the day. One law lord declared that the key question was when the yoghurt had been spilled/how long had it been on the floor.

Legal question
Who has the responsibility to prove breach of duty of care?

Judgment
The appeal was dismissed

Question 6

List the elements of establishing negligence/dements

Answer 6

1. Is there a duty of care?
2. Is there a breach of the duty of care?
3. Is there resultant damage?

Question 7

What is prima facie?

Answer 7

Prima facie is a Latin term meaning “at first look,” and refers to evidence before trial which is sufficient to prove the case unless there is contradictory evidence at trial.