Breach of Duty

Once a claimant has proved the duty of care is owed he must then show that the defendant
breached that duty. This is merely when the defendant falls below the standard of care
appropriate to the duty. Breach of duty is measured objectively by the ‘reasonable man test’.
The reasonable man is the ordinary person performing the particular task: he is expected to
perform it reasonably competently. Thus, when I am riding my bicycle, I am expected to be a
reasonably competent cyclist who can ride a bicycle. Therefore, a number of factors that can be
considered to raise or lower the standard. This is logical because a reasonable person will
rightly take greater risks in an emergency, and take more care when the risk of harm is greater.
For a breach of duty to occur, the court will take four factors into account:

a) The degree of risk involved: the greater the risk, the more the defendant has to take care.
(Bolton v Stone (1951)).

Facts: The claimant was injured after a ball from a neighbouring cricket pitch flew into her
outside her home. The cricket field was arranged such that it was protected by a 17-foot gap
between the ground and the top of the surrounding fence. Balls had been known to get over the
fence and land in people’s yards, but this was rare, making the strike which hit the claimant
exceptional. The claimant sued the cricket club in the tort of negligence for her injuries.

Issue: Establishing the tort of negligence involves establishing that the defendant owed the
claimant a duty of care, which they breached in a manner which caused the claimant recoverable
harm. To establish a breach of any duty owed, the claimant must establish that the defendant
failed to act as a reasonable person would in their position.

The issue in this case was what factors were relevant to determining how the reasonable person
would behave, and therefore when the defendant would be in breach of their duty of care.

Held: The House of Lords held that the cricket club was not in breach of their duty. The following
factors were held to be relevant to whether a defendant is in breach of their duty of care:
i. The likelihood of harm;
ii. What precautions were practical for a defendant to take in terms of cost and effort;
iii. Whether the defendant provides a socially-useful service.

In this case, the likelihood of the harm was very low, and erecting a fence any higher than the
defendant had already done would be impractical. The cricket club was also providing a social
useful service to the community. A reasonable cricket club would have, therefore, not behaved any
differently.

b) The cost of precautions: the courts will see how high the risk is involved, and then take
into account the expense of taking precautions to prevent that risk (Bolton v Stone).
 c) Potential seriousness of injures: so if there is a very high risk of serious injury, the more
the defendant needs to be very careful (Paris v Stepney B.C. (1951)).

Facts: The claimant only had sight in one eye due to in injury sustained in the war. During the
course of his employment as a garage hand, a splinter of metal went into his sighted eye causing
him to become completely blind. The employer did not provide safety goggles to workers engaged
in the type of work the claimant was undertaking. The defendant argued there was no breach of
duty as they did not provide goggles to workers with vision in both eyes and it was not standard
practice to do so. There was therefore no obligation to provide the claimant with goggles.

Held: There was a breach of duty. The employer should have provided goggles to the claimant
because the seriousness of harm to him would have been greater than that experienced by workers
with sight in both eyes. The duty is owed to the particular claimant not to a class of persons of
reasonable workers.
d) The importance of the activity: in an emergency, sometimes it is not possible to reflect,
think of a possible risk (Marshall v Osmand (1983)).

Facts: The plaintiff was a passenger in a stolen car being pursued by the police. The plaintiff tried
to escape in order to avoid arrest. He was struck and injured when the police car hit the stolen car

Held: The police officer was not liable. Although a police officer was entitled to use such force in
effecting a suspected criminal’s arrest as was reasonable in all the circumstances, the duty owed
by the police officer to the suspect was in all other respects the standard duty of care to anyone
else, namely to exercise such care and skill as was reasonable in all the circumstances. On the
facts, the police officer had made an error of judgment, but the evidence did not show that he had
been negligent.

In some situations, it is difficult to know exactly what happened, although it is found obvious
that the defendant was negligent.

RES IPSA LOQUITOR

As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that
the defendant owed him a duty of care, that the defendant has breached that duty and that he
has suffered damage. The plaintiff has to prove that there was a duty imposed by common law,
statute or otherwise, upon the defendant and that the defendant was in breach of this duty.
However, at certain times, negligence is presumed without proof of breach of duty by the
plaintiff. This is in the case of res ipsa loquitor .

Where it is applicable, res ipsa loquitor, means that “thing or facts speaks for themselves‟. This
for example, occurs where an accident happens in circumstances in which it ought not to have
occurred e.g. a car traveling on a straight road in clear weather and good visibility suddenly
swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse,
etc. Such an accident ought not to have occurred except for the negligence of the defendant.
Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving
negligence against the defendant. Before it can be relied upon, three conditions must be
satisfied, namely:

a) The thing inflicting the injury must have been under the control of the defendant or
someone whom he controls.
b) The event must be such that it could not have happened without negligence and;
c) There must be no evidence or explanation as to why or how the event occurred, as the
accident is such as in the ordinary course of things does not happen if those who have
the duty use proper care.

In the case of Bryne V s. Boadle (1863), a barrel of flour fell from a warehouse of the defendant
onto the plaintiff injuring him in the street while he was passing through. In the circumstances,
the Court held that the plaintiff was not required to show how the accident took place because
on the facts, negligence could be presumed and the rule of res ipsa loquitor applied.

In the case of Scott v London and St. Katherine Docks (1865) where the claimant was hit by six
bags of sugar which fell from the defendant’s warehouse. The claimant could not say why the
bags had fallen but the court ruled that the facts spoke for themselves and it was up to the
defendant to prove that he was not negligent.

Effect of Res ipsa rule

1. It provides prima facie evidence of negligence on the part of the defendant.

2. It shifts the burden of proof form the plaintiff to the defendant.
3. The plaintiff has suffered injury to his person or property. Plaintiff has to prove that if it
were not of the defendant’s act he would not have suffered loss or damage.

There must be a traceable link between the act and the loss, otherwise it would be considered
remote and so, irrecoverable. If the plaintiff act is traceable to an independent intervening act (
novus actus ), the defendant is not liable.

Damage

Having established a duty of care, and a breach of that duty, the claimant will then need to
show that damage has been caused o them, and that loss is not too remote. A person will only
be liable for damage, which they have actually caused the victim. The same rules apply to
damage to property. The defendant will only be liable if the negligence causes damage. The
usual types of damage are:

i. Personal injury;
ii. Damage to property;
iii. Economic loss.
 a) Causation – ‘But for Test’

The claimant must prove that the defendant’s negligence caused the damage. The rules on
causation apply to all torts which require proof of damage. The basic test is the ‘but for’ test:
would the damage have happened if the defendant had not been negligent? Or Would the
damage have happened had it not been for the breach of duty?

This can be seen Barnett v Chelsea and Kensington Hospitals (1969) Barnett's husband died from
arsenic poisoning. He felt sick after drinking tea at work and went to the hospital. He was not admitted
and treated, but was told to go home. The doctor was at home and would not have been able to first see the
man until approximately 11:00 AM. Barnett subsequently died at about 1:30 PM.

Issue: Was the defendant’s negligence the cause of the death, or would it have inevitably happened
anyway?

Decision: Judgment was held in favour for the defendant.

Reasons: Nield J, based on the evidence, decides that even if the man had been admitted to the hospital
upon his arrival he would likely have died. There was only one antidote for arsenic poisoning, and it was
not readily available and could probably not have been administered in time to save his life. In cases of
cause in fact the burden is on the plaintiff to prove that the defendant’s negligence caused the harm. That
means that they must prove that without the negligence, the harm would not have occurred. The wife does
not do this here, as it is probable that the man would have died even without the hospital's negligent
refusal

Ratio: The burden of proof is on the plaintiff to prove that the negligent actions of the defendant caused
the outcome, i.e. they must establish that if the negligent act did not occur, then the damage would not
have happened. This is common sense ("It would have happened anyway", "there is nothing you could
have done") But is this decision morally problematic? Does common sense support this outcome?

b) Foreseeability (Remoteness of damage)

It is not enough for a harm to be merely caused by a defendant. It is also a requirement that the
causal link between defendant action and claimant harm is sufficiently close. The law has
developed to demand that damage must be foreseeable before it is actionable.

The claimant must also prove that the defendant’s negligence is not too remote from the
damage: a legal, rather than factual, test. The remoteness test in negligence is reasonable
foreseeability; was the kind of damage suffered reasonably foreseeable at the time the duty was
breached?

So long as the type of damage is reasonably foreseeable, it does not matter that it is more
serious than the defendant could have foreseen. The claimant has to show that the type of
damage was reasonably foreseeable.

This is seen in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The
Wagon Mound No. 1) (1961))
Facts: The crew members of the Overseas Tankship (UK) Ltd were working on a ship, when they failed to
turn off one of the furnace taps. This caused oil to leak from the ship into the Sydney Harbour. Morts
Dock & Engineering Co (The Wagon Mound) owned the wharf, which they used to perform repairs on
other ships. The leaking oil on the water surface drifted to the site where Morts were welding metal. A
supervisor enquired to find out whether the oil was flammable, which he was assured that it was not.
However, a spark from welding and mixed with debris, caught fire from the spilt oil and this caused a fire
to spread rapidly. This caused significant damage to Mort’s wharf.

Issues: The issue in this case was whether the crew could be liable for the damage to the wharf that was
caused by the fire. In addition, would this also be the case even if it was unforeseeable, but a result of a
negligent act.

Held: The court held that Overseas Tankship (UK) Ltd could not be held liable to pay compensation for
the damage to the wharf. This case established the test of remoteness of damage. This asks whether the
damage would be reasonably foreseeable. In this case, the damage caused to the wharf by the fire and the
furnace oil being set alight could not be foreseen by a reasonable person.

DEFENCES TO TORT OF NEGLIGENCE

The main defences are:

1. Contributory negligence, which applies when the claimant is partly to blame for the damage, or
its extent.
2. Volenti, which applies when the claimant has consented to what was done by the defendant.
3. Illegality, which applies where the claimant’s case is connected with their own criminal act.
4. Statutory authority, which applies where a statute entitles the defendant to something which
would normally be a tort.

These defences apply to most other torts as well as negligence. Defences which do not apply to negligence
are:
1. Necessity;
2. Mistake;
3. Inevitable accident.

TIME LIMITS

Negligence claims (other than personal injury) must be brought within six years from damage occurring,
or three years from when the claimant knew/ought to have known of it. Personal injury claims must be
brought within three years of the damage, or of the claimant knowing they might have a claim. The courts
have discretion to extend this limit.