TORT 1.12C NEGLIGENCE (BREACH OF DUTY OF CARE)
CONTINUED FROM LESSON 1.12B
BREACH OF DUTY.
This is the second element. In determining whether there has been a breach of duty, the courts would first ask;
- What would a reasonable man have done?
- What would a reasonable man in the circumstances of the defendant (from the facts of the case) have done?
When asking these questions, the courts usually take into cognisance four elements;
- The likelihood of harm. (The greater the likelihood, the greater the amount of caution required). In Bolton v. Stone; The court held that the fence of the cricket pitch was high enough that the likelihood of harm (from a stray ball) to a passer-by was very narrow.
- The gravity of consequences, should accident occur. See Paris v. Stepney Borough Council. In this case, the plaintiff was employed by the defendant as their mechanic. They were aware that he had only one eye and they failed to provide him with safety googles. While he was fixing the under of a vehicle a piece of metal flew into his good eye and damaged it. It was held that the defendant employer had been negligent in not providing safety googles for the plaintiff.
- The importance of the defendant’s activity to the economy and society.
- The cost and practicability of measures to avoid the harm. In Murphy v. Brentwood District Council. Also in Latimer v. AEC, The court held that the occupiers did everything to ensure that the floor was safe nevertheless, the workman slipped and fell. There was no negligence as the only other possible step they would have taken would be to have closed the factory.
The claimant can prove res ipsa loquitur which means that the facts speak for themselves. The plaintiff should first show that the thing causing the damage was under the control of the defendant and that but for the negligence of the defendant the accident would not have occurred. This shifts the onus of proof to the defendant. The defendant may then plead that it was an accident beyond his control.