1 BUSINESS LAW 1 NEGLIGENCE - BREACH OF DUTY OF CARE

2 Content of this class 1. Definition of breach. 2. Factors considered in assessing breach. 3. Burden of proof - Res Ipsa Loquitur.

3 Blyth v Birmingham Waterworks Defendant breaches duty if he: i.Fails to do something which a reasonable man ii.Guided upon those considerations which ordinarily regulate the conduct of human affairs would do; or iii.Does something which a prudent and reasonable man would not do.

4 An objective test So… Would the reasonable man have acted as the defendant did? i. If yes, no breach. ii. If no, breach.

5 FACTORS CONSIDERED IN ASSESSING BREACH 1.Likelihood of Injury. 2.Seriousness of Risk. 3.Cost and Practicability. 4.Social Utility. 4.Common Practice. 6.Conduct of Skilled Persons.

6 Likelihood of Injury Degree of care must be balanced against degree of risk involved if defendant fails in his duty. Bolton v Stone [1951] Seriousness of Risk Degree of care to be exercised by defendant may be increased if claimant very young, old or less able bodied in some way. Haley v London Electricity Board [1965]

7 See also the following cases: Gough v Thorne [1966] Daly v Liverpool Corp. [1939] Paris v Stepney BC [1951]

8 Cost and Practicability Court will consider cost and practicability to defendant of overcoming risk to claimant. Foreseeable risk has to be balanced against measures necessary to eliminate it. Latimer v AEC [1952]:

9 Social Utility Degree of risk has to be balanced against importance of defendant’s activity to community. If activity of particular importance to society then taking of greater risks by defendant may not result in breach of duty. Watt v Hertfordshire CC [1954]

10 Common Practice If defendant can show what he did is common practice then this is evidence that duty of care has not been breached. Paris v Stepney BC [1951]

11 Conduct of Skilled Persons Standard of care to be exercised by skilled person judged against what ordinary skilled person in same job would have done. Skilled person judged on standard of knowledge possessed by profession at time accident occurred. Roe v Minister of Health [1954].

12 BURDEN OF PROOF – RES IPSA LOQUITOR Res Ipsa Loquitur doctrine (‘the thing speaks for itself’). Burden of proof will be reversed if courts can infer negligence must have taken place from facts. In this situation it will be for the defendant to demonstrate that there has been no negligence on his part.

13 1.Cause of accident must be unknown and impossible to discover; 2.The only way in which the accident could have happened was through negligence. Mahon v Osborne (1939) 3.The defendant must have had control of the situation.