NEGLIGENCE: BREACH OF DUTY

Sweta Lakhani
ESSENTIAL CONDITION TO SUE FOR NEGLIGENCE

• The defendant was under a duty of care to the plaintiff.

• The duty was towards plaintiff.
• There had been a breach of that duty.
• As a result the plaintiff has suffered damage.
BREACH OF DUTY
• The breach of a duty of care means that the person who has an existing duty of care
should act wisely and not omit or commit any act which he has to do or not do as
said.
• It should be noted that the standard of care will always be based on reasonable
foreseeability.
• This means that the courts will not ask whether a reasonable person foresaw a
certain outcome or not, but rather they will seek to work out what the defendant
should have foreseen.
• This means that cases which involve highly unlikely outcomes are not likely to be
successful.
REASONABLE PERSON TEST
• The test to verify this is objective one, what it constitutes will vary.
• The duty is to do whatever a reasonable person would do to prevent a harm
occurring, not to do absolutely anything and everything possible to prevent a
harm.
• Possessing no exceptional skills or knowledge. Provided what the actual
defendant professes/is expected to have.
BREACH OF DUTY
• Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
• A very old clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people.
• The clock tower was 80 years old although the normal life span of the clock tower should
have been 40-45 years.
• The clock tower was under the control of The Municipal Corporation of Delhi and they had a
duty of care towards the citizens.
• By ignoring to repair the clock tower, they had breached their duty of care toward the public
and were thereby liable.
THE RELEVANT BREACH OF STANDARD OF CARE
DEPENDS ON:

Nature of the Nature of the

defendant activity being
undertaken
MAGNITUDE OF RISK
• There are two ways the magnitude of risk affects the relevant standard of
care.

Likelihood Seriousness
of risk of the risk
• a higher standard of care will be applied to situations involving either a high
likelihood of harm or situations involving a high seriousness of harm (or both.)
• For
example, a lab is working with the highly infectious corona virus, we’d
want it to act with the utmost care because it presents a likely risk.
• On the other hand, it would be unjust to apply this high standard to a
secondary school lab working with some nonthreatening bacteria - the
likelihood of it harming someone is far, far lower.
• Assuch, the law will seek to impose a standard of care which scales
proportionally with the risk involved.
Haley v London Electricity Board[1965] AC 778
• the defendant was sued for failing to provide proper safety fences around a
hole it was digging on a London street.
• As a result, the claimant, who was blind, fell into the hole, injuring himself.
• Because it was held to be a foreseeable risk that someone blind would
be
walking down the street, and would therefore be unprotected from the
hazard, the claim was successful.
• In contrast, consider a case with similar facts, but in which the hole was dug in
a remote field - because the likelihood of a blind person falling into the hole
is far lower, so is the expected standard of care.
 COST OF PRECAUTION
• The courts will take into account the cost of precaution when considering the applicable standard of care.
• Latimer v AEC Ltd[1953] AC 643

• The claimant was working in a factory. The factory got flooded after a heavy storm. The rainwater got mixed
with an oil-based cooling agent used in the factory, and this left an oily film on the factory floor even after the
water was drained away.
• The defendants spread sawdust over most of the floor, they did not have enough sawdust to cover the entirety of
it. The claimant was injured when he slipped on this uncovered floor.
• The claim, however, failed. The factory should have had more sawdust on hand to deal with the slipperiness, and
that this was the real breach which occurred.

• However, keep in mind that the reason the entire stock of sawdust was used up was due to the unpredictably
heavy rainfall. In other words, the factory’s supply of sawdust was enough to deal with reasonably foreseeable
situations.
 SOCIAL VALUE OF ACTIVITY
• The courts will apply a lesser standard of care to socially valuable activities.
• Watt v Hertfordshire County Council [1954] 1 WLR 835.
• The claimant was a fireman on the way to an accident - some 300 yards away from the fire
station itself.
• A heavy lorry jack was required at the scene of the accident, but the usual vehicle for
transporting the jack was unavailable.
• As a result, the fire chief ordered the claimant and another fireman to lift the jack onto the
back of a truck.
• During the journey there was no way of securing the jack, and when the truck braked, the
heavy jack fell onto the claimant’s leg, causing severe injuries.
• The courts denied the claim - the emergency nature of the situation and the utility of saving
a life outweighed the need to take proper precautions.
PROVING BREACH
• Once the relevant standard of care has been established, it is up to the claimant to
argue that the defendant breached the standard.
• This will be based on the balance of probabilities.
• In other words, the claimant must argue that it was more likely than not that the
defendant breached the standard of care.
• The courts may infer breach where;
• 1. the accident must be of a kind which does not ordinarily occur in the absence of
someone’s negligence.
• 2. must be within the exclusive control of the defendant.
• 3. it must not be due to any voluntary actions on the part of the plaintiff.
 RES IPSA LOQUITOR
• Translated as ‘the facts speak for themselves’,
• This refers to specific situations in which the
claimant cannot directly show that the
defendant factually acted in a negligent manner,
• But also in which the claimant argues that it is obvious that their injuries were caused by
the defendant’s negligence.
• Inother words, the claimant argues that it is more likely than not that the defendant
acted negligently, but is unable to detail exactly how the negligence unfolded.
Scott v London & St Katherine Docks Co [1865] 3 H&C 596
• The claimant was injured by a sack of sugar which had fallen from a crane which was
operated by the defendants.
• The courts ruled that there was no need for the claimant to show that the defendants
had factually caused his injuries.
• On the basis of res ipsa loquitor, laying down a three-part test for the use of the
maxim.
• Firstly, the thing which causes damage must be under the control of the defendant (or
under the control of someone for whose actions the defendant is responsible for.)
• Secondly, the cause of the accident must be unknown.
• And thirdly, the injurious event must be one which would not normally occur without
negligence.
• So, applying this test to the above case, the crane was under the control of the
defendant, the exact cause of the accident was unknown, but the accident was
of a type which would not occur without negligence (cranes don’t usually drop
their load suddenly.)
• Such a situation also demonstrates the usefulness of the principle - it means
that claimants can still make a claim, even if they cannot directly explain the
negligence which has occurred.
• For example, in the above case, the breach might have been caused by
incompetent operation or poor maintenance; regardless, both of these are
negligent acts. As such, the maxim of res ipsa loquitor allows claims to be
made even if a ‘true’ narrative of events cannot be provided by the claimant.
• The effect of res ipsa loquitor is that it raises a presumption of negligence
against the defendant.
• However, this presumption is rebuttable - if the defendant can still provide an
explanation of how the harm might have occurred without negligence then the
use of the maxim will fail.
• This will leave the claimant to show that the defendant’s version of events is
faulty - in essence the burden of proof is then the same as a normal case.
CASES
VAUGHAN V. MENLOVE
• Facts:
• Defendant was warned that his haystacks posed a substantial risk of igniting
and damaging Plaintiff’s cottages.
• He disregarded these warnings and kept the hay in place.
• The hay did ignite and damage Plaintiff’s cottages, and Plaintiff brought suit
for negligence.
• The jury found for Plaintiff, but Defendant obtained a ruling on the ground
that the jury should have been instructed to find negligence only if it found
Defendant had not acted to the best of his own judgment.
VAUGHAN V. MENLOVE
• Held : Yes. The standard of negligence is an objective one.
• Discussion:
• This case rejects the argument that a Defendant’s particular sensibilities or
weaknesses should be taken into account in evaluating negligence claims.
• Rather, one must look only to whether one has acted as would a reasonably
prudent person under similar circumstances.
ROBERTS V. RING
Facts:
• Defendant, seventy-seven years old, was driving on a busy street. His sight and
hearing were defective.
• Plaintiff, a seven-year-old boy, ran from behind a buggy, across the street, and in
front of Defendant’s car.
• As he passed in front of Defendant’s car, Plaintiff was struck and injured.
• Plaintiff sued Defendant for negligence.
Issue:
• There are two issues in this case:
• * Whether Defendant’s negligent in failing to promptly stop his car or not?
• * Whether Plaintiff should be held to the same standard of care commonly
exercised by the ordinary boy of his age and maturity or not?
ROBERTS V. RING
Held.
• Yes, Defendant was negligent. Yes, Plaintiff is held to the degree of care commonly
exercised by the ordinary boy of his age and maturity.
• The question of Defendant’s negligence was a proper one to be submitted to the jury.
Defendant was driving four to five miles per hour, not a negligent rate of speed.
However, Defendant testified that he saw Plaintiff just before striking him with his car.
It is common knowledge that a car traveling at Defendant’s rate of speed can be
stopped within a very few feet. In this case, Defendant drove his car clear over the
Plaintiff. The jury could have found that Defendant was negligent in failing to stop his
car sooner.
• The question of Plaintiff’s contributory negligence is also appropriate for the jury. In
considering the negligence of a seven-year-old boy, the standard of care, is the
degree of care commonly exercised by an ordinary boy of his age and maturity.
FLETCHER V. CITY OF ABERDEEN
Facts:
• For the purpose of placing electric wires underground, the city (Defendant) dug a ditch in the
parking strip adjacent to the sidewalk.
• Defendant erected suitable barricades to protect pedestrians from falling into the ditch.
• One of Defendant’s employees removed the barricades while working on another site and
negligently failed to replace them.
• Plaintiff, a blind man, fell into the ditch while the barricades were down.
• By use of his cane, the barriers would have prevented Plaintiff from falling into the ditch.
• Plaintiff sued Defendant for negligence. The jury returned a verdict for Plaintiff and found
that the city was negligent in removing the barriers without providing other warning.
FLETCHER V. CITY OF ABERDEEN
Held:
• Yes. Judgment for Plaintiff affirmed.
• The duty of maintaining the sidewalks and the adjacent parking strips is a
continuing one. In this case, the city is negligent when it removes proper and
necessary barricades without giving pedestrians other types of warning.
• The city is charged with knowledge that those who are physically infirm as
well as those in perfect physical condition will use its streets. The person under
a physical disability is obligated to use the care, which a reasonable person
under the same or similar disability would exercise under the circumstances.
The city is obligated to use the care, which would give notice to a physically
disabled person a danger to be encountered.