Hardley School & Sixth Form Faculty of Business & Vocational Studies

A2 Law: Tort Negligence: Breach of Duty

BREACH OF DUTY

The second stage of the modern three-part test for negligence is to establish whether or not the defendant has breached the duty of care that they owe to the claimant. There are four factors that will be considered when deciding whether a breach has occurred. These are:

·  Likelihood of harm

·  Magnitude of harm

·  Practicability of precautions

·  Usefulness of the act

These factors are always considered in relation to the ‘standard of care’ that is to be reasonably expected of the defendant.

IMPORTANCE OF EVIDENCE IN ESTABLISHING PROOF OF BREACH

The claimant bears the burden of proving, on the balance of probabilities, that the defendant was negligent. However, in some situations a claimant may be able to rely on the maxim res ipsa loquitur, i.e. the thing speaks for itself. By this rule of evidence, the mere fact of an accident occurring raises the inference of the defendant's negligence, so that a prima facie case exists. "You may presume negligence from the mere fact that it happens" (Ballard v North British Railway (1923) SC 43).

WHEN THE MAXIM 'RES IPSA LOQUITUR' APPLIES

There are three conditions that must be fulfilled before res ipsa loquitur applies.

(a) The defendant must have control over the thing that caused the damage. See:

Easson v LNER [1944] 2 All ER 425

(b) The accident must be such as would not normally happen without carelessness. See:

Scott v London and St Katherine Docks (1865) 3 H & C 596

(c) The cause of the accident must be unknown. See:

Barkway v South Wales Transport [1950] 1 All ER 392

ITS EFFECT

There are two opinions as to the effect of res ipsa loquitur.

(a) It raises a prima facie inference of negligence, which requires the defendant to provide a reasonable explanation of how the accident could have occurred without negligence on his part. If the defendant provides an explanation, the inference is rebutted and the claimant must prove the defendant's negligence. See:

Colvilles Ltd v Devine [1969] 2 All ER 53

(b) It reverses the burden of proof requiring the defendant to show that the damage was not caused by his failure to take reasonable care. See:

Henderson v Henry Jenkins & Sons [1969] 3 All ER 756
Ward v Tesco Stores [1976] 1 All ER 219

The opinion of the Privy Council is that burden of proof does not shift to the defendant because the burden of proving negligence rests throughout the case on the claimant. See:

Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.

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TASK:

Use www.a-level-law.com to research and make notes on the cases mentioned above

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