The Range and Scope of Tort Law
C must show loss or injury is a type of harm recognised by the existing law or persuade the courts to extend the law so as to protect
them
Torts that are actionable ‘per se’ do not require the claimant to have suffered any actual injury or damage – the infringement of a
legal right is protected by the law of tort
Bradford One of Bradford Corporation’s water reservoirs was partly filled by water flowing through the water table under
Corporation v land belonging to D. D sank some drainage holes on his land, the effect of which was to diminish the water flowing
Pickles [1895] into C’s reservoir. C sought an injunction to prevent D sinking further drains which would have rendered the
reservoir useless.
Despite clear evidence that the drainage work was an attempt by D to force C to pay him to desist, the HOL refused
to grant an injunction. D had legitimately used his own land and had not caused C any harm that was protected in
tort. The fact that D acted with malice was irrelevant.
Tort and Human Rights
Many of the rights established by the ECHR have been given effect in English law by the Human Rights act 1998 (HRA 1998)
o S. 6 provides it is unlawful for a public authority to act in a way which is incompatible with a Convention right
o S. 7 allows a victim of such breach to bring proceedings against the public authority and gives the court power to award a
remedy for such breach (s.8)
Where D is a public body, the HRA 1998 may sometimes provide a direct alternative to a claim in tort (where tort law may not afford
protection)
Wainwright v Home C, when visiting a prison, was subjected to a strip search in circumstances which caused her distress and
Office [2004] embarrassment. She complained of an interference with her privacy. The existing law of tort did not provide a
remedy for mere distress and embarrassment. Although C was seeking a remedy against a public body (the prison
authorities) the events had occurred before the HRA 1998 came into force. C tried to rely upon ECHR Art 8 to
persuade the court to extend the existing law of tort to cover the kind of harm she had suffered. The HOL declined
to extend the law of tort to provide a remedy for the kind of harm suffered by C – mere distress and upset. The
court declined to identify privacy as a single protected interest requiring the creation of a single and distinct tort of
interference with privacy.
A Claim in Tort
If C succeeds in proving the elements of a tort case, they have established a case in principle (prima facie case) and will succeed
unless D can establish a defence.
D can raise a number of defences – some only apply to torts (general defences), others are specific defences to only one tort.
The burden of proving that a defendant has committed a tort lies with C.
The burden of establishing a defence lies with D.
Tort Law
, Negligence
Negligence
Negligence may be defined as a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the
defendant. To make a claim in negligence, C must establish:
D owed C a duty of care
D breached this duty
C suffered a loss as a result of this breach
Duty of Care
Established Duty One road user to another
Situations Doctor to patient
Employer to employee
Manufacturer to consumer
Teacher to pupil
Creator of a dangerous situation to a rescuer (Baker TE Hopkins & Son Ltd)
Novel Duty Situations The neighbour principle (Donoghue v Stevenson)
o ‘Avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.’
o ‘Persons who are so closely and directly affected by my act that I ought reasonably to have them
in my contemplation as being so affected.’
The Caparo test (refined the neighbour principle)
The Caparo Test
3-part test to establish whether or not a duty of care exists
Reasonable foresight of harm to the claimant.
Sufficient proximity of relationship between the claimant and the defendant.
Fair, just and reasonable to impose a duty (additional element not in the neighbour principle).
Robinson v Chief Sought to clarify the approach that should be taken when considering the duty of care question and the
Constable of West applicability of the Caparo three-part test as follows:
Yorkshire Police (1) Where there is a line of authority establishing that a duty of care is owed or not owed, the courts must
follow that authority.
(2) Where the SC is invited to depart from an established line of authority, it can appropriately examine
what is ‘fair, just and reasonable’.
(3) Where there is a novel case in which the existing authorities do not provide an answer on whether a
duty of care exists, the courts must develop the law ‘incrementally and by analogy with established
authority’.
Foreseeability
Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?
Bourhill v Young C heard a collision between a motorcycle and a car, and walked to the scene. She saw blood on the roadway and
claimed she suffered shock and a miscarriage as a result. She claimed damages against the estate of the dead
motorcyclist whose negligence had caused the accident.
HELD: C was not a foreseeable victim of the motorcyclist’s negligence, so no duty of care was owed to her.
Therefore, her claim for damages failed.
Proximity
Relates to the relationship between the claimant and the defendant.
Thus the duty of care may be limited in the case of:
• omissions, such as the failure of the local authority to improve the road junction;
• pure economic loss, such as the loss of investments caused by the journalist;
• pure psychiatric harm, such as that suffered by the victims of the train crash.
Kirkham v Chief P’s husband was remanded in custody. The police knew that he was a suicide risk but failed to pass this information
Constable of on to the prison authorities; in particular, a form that would have identified the husband as a suicide risk was not
Greater properly compiled. The husband, who was suffering from clinical depression, committed suicide. Had the prison
Manchester authorities known of the risk, they would have taken steps to prevent his suicide. The CoA held that by taking the
Police husband into custody, the police had assumed a duty of passing information that might affect his wellbeing on to
the prison authorities. The husband had relied on that responsibility and the police had been negligent in failing to
tell the prison authorities of his suicidal tendencies. There was proximity between the police and the prisoner.
Fair, Just and Reasonable
Is it fair, just and reasonable to impose a duty?
May Not be a Duty
,There may not be a duty of care where:
Harm is caused by a public body, such as a local authority or the police (as opposed to an individual); or
Harm is caused by an omission to act (as opposed to a positive act of wrongdoing); or
The harm caused is pure psychiatric injury (as opposed to physical injury); or
The harm caused is pure economic loss (as opposed to physical damage to property).
OMISSIONS
The general rule: no liability for omissions (Stovin v Wise)
If you see a stranger drowning and you fail to do anything about it, you could not be sued in negligence as you do not owe the
stranger a duty to act positively on their behalf (unless you had a special relationship e.g. lifeguard/ swimming instructor)
If you do try to rescue such a person, you will be liable in negligence only if you positively make the situation worse
(East Suffolk Rivers Catchment Board v Kent and another).
There may also be a duty to act positively where there is a special relationship of control for example (Home Office v Dorset Yacht
Co Ltd).
Stovin v Wise The highway authority knew that a road junction was dangerous but failed to exercise its powers to reduce the
danger. An accident occurred at the junction, and it was alleged that the highway authority should contribute
towards compensating the injured party. However, it was held that the authority owed no duty of care to road-
users to alleviate the danger.
East Suffolk Land belonging to C was flooded when a sea wall was breached. D had no duty to repair the wall but it did have a
Rivers statutory power to do so. D did decide to repair the wall. However, it took a long time to do so, during which C’s
Catchment land remained flooded. The HOL said that there was no liability in tort. Their Lordships said the Board was guilty of
Board v Kent an omission, not a ‘positive negative act’. Thus, if you do not owe a duty to act but you do decide to intervene, you
and another will not be liable in negligence even if you do act carelessly, unless you make matters worse.
Home Office v A group of boys incarcerated in a young offender institution were taken to local harbour to work on a repair project
Dorset Yacht Co within the harbour. At night the officers in charge of the young men left them unsupervised. The boys ‘escaped’ and
Ltd boarded a yacht which they set in motion. This yacht collided with C’s yacht and caused extensive damage. C sued
the officers’ for their negligence.
The HOL decided that there was a duty of care owed to C by the Home Office which was liable for the negligent acts
of its employees (vicarious liability). This duty was owed because they should have foreseen the harm to C’s yacht
when they failed to supervise the boys, who all had criminal records.
The damage which occurred to C’s yacht was due to an omission to act, for which ordinarily no duty would be owed.
In this case, a duty was imposed because the officers had control over the boys.
Smith v C owned property adjacent to D’s unoccupied but locked property. People started a fire in D’s property which
Littlewoods damaged C. The court held no duty was owed as it would be too wide, and D had no control over the third parties
Organisation Ltd entering the property.
Carmarthenshire A 4-year-old child strayed from a nursery school run by the local education authority. C’s husband, a lorry driver, was
County Council v killed when he swerved to avoid hitting the child. The court held that the education authority owed a duty to
Lewis prevent the child endangering others. It had assumed responsibility for controlling the child.
Barrett v Barrett, a naval airman celebrated his birthday. Many friends bought him drinks in the mess. He became very drunk.
Ministry of He went outside and collapsed unconscious. Friends found him and put him to bed.
Defence CA 1994 They checked on him a few of times. When they came to check on him again, they found that he had choked on his
own vomit and died. His widow sued the Ministry of Defence as vicariously liable for the negligence of those who
looked after him. There is no general duty to rescue people from the consequences of their own folly.
A duty can arise when D assumes responsibility for C.
Until he became unconscious his colleagues did not owe him a duty of care. When they found him and helped him
Barrett’s colleagues assumed responsibility for him. The damages were substantially reduced by contributory
negligence.
Breach
Whether D has breached their duty is a question of facts for the judge to decide.
Application of a 2-stage test:
o Did D meet the standard of care expected of them in the circumstances?
o Did D’s conduct fall below the required standard of care?
PRINCIPLE AUTHORITY
Negligence is the omission to do something which a prudent or reasonable individual Blyth v Birmingham
Reasonable Person
would or would not do Waterworks (1856)
Glasgow Corporation v Muir
SoC owed is that of a ‘reasonable person’ in those circumstances (objective)
[1943]
SoC owed by learner driver is that of a reasonably competent driver. Nettleship v Weston [1971]
, SoC owed by junior doctor is that of a reasonably competent qualified doctor. Wilsher v Essex AHA [1986]
Skilled defendant
Bolam Test: A doctor “is not guilty of negligence if he has acted in accordance with a Bolam v Friern Hospital
STANDARD OF CARE
practice accepted as proper by a responsible body of medical men skilled in that Management Committee
particular art. [1957]
It will not always be enough for D to show that their practice was common-place; the Bolitho v City and Hackney
practice must also be reasonable or responsible. Health Authority [1997]
The standard required will be that of the reasonable child of the defendant’s age. Mullin v Richards [1998]
Standard
Lower
Not liable if did not know your actions would be impaired by illness or disability. Mansfield v Weetabix Ltd.
e.g. driver suffers medical emergency they did not know they had not liable. [1998]
Likeliho
A reasonable person does not take precautions against every risk, only those
Bolton v Stone [1951]
od
reasonably likely to happen.
If any injury that may occur would be serious, greater care will be needed than if the Paris v Stepney Borough
Magnitude
risk was of a more minor injury. Council [1951] Watson v
British Boxing Board of
e.g. risk of blindness (Paris v Stepney) or brain damage (Watson) Control (BBBC) Ltd [2001]
It is necessary to ascertain how easily the risk could have been avoided and to balance
Practicality
the cost and practicality of these precautions against the severity of the risk. If it
Latimer v AEC Ltd [1953]
would be unreasonable to require them to take the necessary precautions, even
against a clearly foreseeable risk, the court will accordingly not impose liability.
ESTABLISHING A BREACH
The value to society of the defendant’s activity is a factor the courts consider. If the defendant has taken a risk with the
aim of preserving or protecting life, limb, or property, then this may be justified.
Benefit
Fireman did not secure equipment properly (and it injured a fireman) but was not a
Watt v Hertfordshire County
breach as the risk of injury was small, and the ultimate aim of saving life justified
Council [1954]
taking the risk. Where life is at stake, abnormal risks may be justified.
If D can show they have acted in accordance with a practice usually followed by others in that field, they may escape
Common
liability.
Practice
However, note that the court can always rule that the common practice is itself Bolam (above)
negligent if it deems it to be illogical. Bolitho (above)
The courts must assess the defendant’s actions against the knowledge in the
knowledge at
profession and/or accepted practice at the time of the alleged breach.
State of
Roe v Minister of Health
time
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against
[1954]
them will not be regarded as negligence.
e.g. seepage of chemical through invisible cracks - risk not known in Roe
All relevant factors (common practice, state of the art etc.) need to be balanced to The Wagon Mound (No 2)
B
determine if there has been a breach [1967]
The burden is on the claimant to prove that the defendant breached the duty of care on the balance of probabilities.
Where the incident that caused the loss led to a criminal prosecution, the claimant may be s.11 of the Civil Evidence Act
Burden of Proof
helped by relying on any conviction if it is evidence of careless conduct 1968
Where the only plausible explanation for the claimant’s injuries is negligence by D, the maxim
Res ipsa loquitur
res ipsa loquitur (‘the facts speak for themselves’) can be applied.
For res ipsa loquitur to apply:
1) The thing causing the damage was under the control of D or someone they are responsible
Scott v London and St
for
Katherine Docks Co 1865 3
2) The accident would not normally happen without negligence &
H&C 596
3) The cause of the accident is unknown to the claimant i.e. the claimant has no direct
evidence of the defendant's failure to take care
C must show loss or injury is a type of harm recognised by the existing law or persuade the courts to extend the law so as to protect
them
Torts that are actionable ‘per se’ do not require the claimant to have suffered any actual injury or damage – the infringement of a
legal right is protected by the law of tort
Bradford One of Bradford Corporation’s water reservoirs was partly filled by water flowing through the water table under
Corporation v land belonging to D. D sank some drainage holes on his land, the effect of which was to diminish the water flowing
Pickles [1895] into C’s reservoir. C sought an injunction to prevent D sinking further drains which would have rendered the
reservoir useless.
Despite clear evidence that the drainage work was an attempt by D to force C to pay him to desist, the HOL refused
to grant an injunction. D had legitimately used his own land and had not caused C any harm that was protected in
tort. The fact that D acted with malice was irrelevant.
Tort and Human Rights
Many of the rights established by the ECHR have been given effect in English law by the Human Rights act 1998 (HRA 1998)
o S. 6 provides it is unlawful for a public authority to act in a way which is incompatible with a Convention right
o S. 7 allows a victim of such breach to bring proceedings against the public authority and gives the court power to award a
remedy for such breach (s.8)
Where D is a public body, the HRA 1998 may sometimes provide a direct alternative to a claim in tort (where tort law may not afford
protection)
Wainwright v Home C, when visiting a prison, was subjected to a strip search in circumstances which caused her distress and
Office [2004] embarrassment. She complained of an interference with her privacy. The existing law of tort did not provide a
remedy for mere distress and embarrassment. Although C was seeking a remedy against a public body (the prison
authorities) the events had occurred before the HRA 1998 came into force. C tried to rely upon ECHR Art 8 to
persuade the court to extend the existing law of tort to cover the kind of harm she had suffered. The HOL declined
to extend the law of tort to provide a remedy for the kind of harm suffered by C – mere distress and upset. The
court declined to identify privacy as a single protected interest requiring the creation of a single and distinct tort of
interference with privacy.
A Claim in Tort
If C succeeds in proving the elements of a tort case, they have established a case in principle (prima facie case) and will succeed
unless D can establish a defence.
D can raise a number of defences – some only apply to torts (general defences), others are specific defences to only one tort.
The burden of proving that a defendant has committed a tort lies with C.
The burden of establishing a defence lies with D.
Tort Law
, Negligence
Negligence
Negligence may be defined as a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the
defendant. To make a claim in negligence, C must establish:
D owed C a duty of care
D breached this duty
C suffered a loss as a result of this breach
Duty of Care
Established Duty One road user to another
Situations Doctor to patient
Employer to employee
Manufacturer to consumer
Teacher to pupil
Creator of a dangerous situation to a rescuer (Baker TE Hopkins & Son Ltd)
Novel Duty Situations The neighbour principle (Donoghue v Stevenson)
o ‘Avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.’
o ‘Persons who are so closely and directly affected by my act that I ought reasonably to have them
in my contemplation as being so affected.’
The Caparo test (refined the neighbour principle)
The Caparo Test
3-part test to establish whether or not a duty of care exists
Reasonable foresight of harm to the claimant.
Sufficient proximity of relationship between the claimant and the defendant.
Fair, just and reasonable to impose a duty (additional element not in the neighbour principle).
Robinson v Chief Sought to clarify the approach that should be taken when considering the duty of care question and the
Constable of West applicability of the Caparo three-part test as follows:
Yorkshire Police (1) Where there is a line of authority establishing that a duty of care is owed or not owed, the courts must
follow that authority.
(2) Where the SC is invited to depart from an established line of authority, it can appropriately examine
what is ‘fair, just and reasonable’.
(3) Where there is a novel case in which the existing authorities do not provide an answer on whether a
duty of care exists, the courts must develop the law ‘incrementally and by analogy with established
authority’.
Foreseeability
Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?
Bourhill v Young C heard a collision between a motorcycle and a car, and walked to the scene. She saw blood on the roadway and
claimed she suffered shock and a miscarriage as a result. She claimed damages against the estate of the dead
motorcyclist whose negligence had caused the accident.
HELD: C was not a foreseeable victim of the motorcyclist’s negligence, so no duty of care was owed to her.
Therefore, her claim for damages failed.
Proximity
Relates to the relationship between the claimant and the defendant.
Thus the duty of care may be limited in the case of:
• omissions, such as the failure of the local authority to improve the road junction;
• pure economic loss, such as the loss of investments caused by the journalist;
• pure psychiatric harm, such as that suffered by the victims of the train crash.
Kirkham v Chief P’s husband was remanded in custody. The police knew that he was a suicide risk but failed to pass this information
Constable of on to the prison authorities; in particular, a form that would have identified the husband as a suicide risk was not
Greater properly compiled. The husband, who was suffering from clinical depression, committed suicide. Had the prison
Manchester authorities known of the risk, they would have taken steps to prevent his suicide. The CoA held that by taking the
Police husband into custody, the police had assumed a duty of passing information that might affect his wellbeing on to
the prison authorities. The husband had relied on that responsibility and the police had been negligent in failing to
tell the prison authorities of his suicidal tendencies. There was proximity between the police and the prisoner.
Fair, Just and Reasonable
Is it fair, just and reasonable to impose a duty?
May Not be a Duty
,There may not be a duty of care where:
Harm is caused by a public body, such as a local authority or the police (as opposed to an individual); or
Harm is caused by an omission to act (as opposed to a positive act of wrongdoing); or
The harm caused is pure psychiatric injury (as opposed to physical injury); or
The harm caused is pure economic loss (as opposed to physical damage to property).
OMISSIONS
The general rule: no liability for omissions (Stovin v Wise)
If you see a stranger drowning and you fail to do anything about it, you could not be sued in negligence as you do not owe the
stranger a duty to act positively on their behalf (unless you had a special relationship e.g. lifeguard/ swimming instructor)
If you do try to rescue such a person, you will be liable in negligence only if you positively make the situation worse
(East Suffolk Rivers Catchment Board v Kent and another).
There may also be a duty to act positively where there is a special relationship of control for example (Home Office v Dorset Yacht
Co Ltd).
Stovin v Wise The highway authority knew that a road junction was dangerous but failed to exercise its powers to reduce the
danger. An accident occurred at the junction, and it was alleged that the highway authority should contribute
towards compensating the injured party. However, it was held that the authority owed no duty of care to road-
users to alleviate the danger.
East Suffolk Land belonging to C was flooded when a sea wall was breached. D had no duty to repair the wall but it did have a
Rivers statutory power to do so. D did decide to repair the wall. However, it took a long time to do so, during which C’s
Catchment land remained flooded. The HOL said that there was no liability in tort. Their Lordships said the Board was guilty of
Board v Kent an omission, not a ‘positive negative act’. Thus, if you do not owe a duty to act but you do decide to intervene, you
and another will not be liable in negligence even if you do act carelessly, unless you make matters worse.
Home Office v A group of boys incarcerated in a young offender institution were taken to local harbour to work on a repair project
Dorset Yacht Co within the harbour. At night the officers in charge of the young men left them unsupervised. The boys ‘escaped’ and
Ltd boarded a yacht which they set in motion. This yacht collided with C’s yacht and caused extensive damage. C sued
the officers’ for their negligence.
The HOL decided that there was a duty of care owed to C by the Home Office which was liable for the negligent acts
of its employees (vicarious liability). This duty was owed because they should have foreseen the harm to C’s yacht
when they failed to supervise the boys, who all had criminal records.
The damage which occurred to C’s yacht was due to an omission to act, for which ordinarily no duty would be owed.
In this case, a duty was imposed because the officers had control over the boys.
Smith v C owned property adjacent to D’s unoccupied but locked property. People started a fire in D’s property which
Littlewoods damaged C. The court held no duty was owed as it would be too wide, and D had no control over the third parties
Organisation Ltd entering the property.
Carmarthenshire A 4-year-old child strayed from a nursery school run by the local education authority. C’s husband, a lorry driver, was
County Council v killed when he swerved to avoid hitting the child. The court held that the education authority owed a duty to
Lewis prevent the child endangering others. It had assumed responsibility for controlling the child.
Barrett v Barrett, a naval airman celebrated his birthday. Many friends bought him drinks in the mess. He became very drunk.
Ministry of He went outside and collapsed unconscious. Friends found him and put him to bed.
Defence CA 1994 They checked on him a few of times. When they came to check on him again, they found that he had choked on his
own vomit and died. His widow sued the Ministry of Defence as vicariously liable for the negligence of those who
looked after him. There is no general duty to rescue people from the consequences of their own folly.
A duty can arise when D assumes responsibility for C.
Until he became unconscious his colleagues did not owe him a duty of care. When they found him and helped him
Barrett’s colleagues assumed responsibility for him. The damages were substantially reduced by contributory
negligence.
Breach
Whether D has breached their duty is a question of facts for the judge to decide.
Application of a 2-stage test:
o Did D meet the standard of care expected of them in the circumstances?
o Did D’s conduct fall below the required standard of care?
PRINCIPLE AUTHORITY
Negligence is the omission to do something which a prudent or reasonable individual Blyth v Birmingham
Reasonable Person
would or would not do Waterworks (1856)
Glasgow Corporation v Muir
SoC owed is that of a ‘reasonable person’ in those circumstances (objective)
[1943]
SoC owed by learner driver is that of a reasonably competent driver. Nettleship v Weston [1971]
, SoC owed by junior doctor is that of a reasonably competent qualified doctor. Wilsher v Essex AHA [1986]
Skilled defendant
Bolam Test: A doctor “is not guilty of negligence if he has acted in accordance with a Bolam v Friern Hospital
STANDARD OF CARE
practice accepted as proper by a responsible body of medical men skilled in that Management Committee
particular art. [1957]
It will not always be enough for D to show that their practice was common-place; the Bolitho v City and Hackney
practice must also be reasonable or responsible. Health Authority [1997]
The standard required will be that of the reasonable child of the defendant’s age. Mullin v Richards [1998]
Standard
Lower
Not liable if did not know your actions would be impaired by illness or disability. Mansfield v Weetabix Ltd.
e.g. driver suffers medical emergency they did not know they had not liable. [1998]
Likeliho
A reasonable person does not take precautions against every risk, only those
Bolton v Stone [1951]
od
reasonably likely to happen.
If any injury that may occur would be serious, greater care will be needed than if the Paris v Stepney Borough
Magnitude
risk was of a more minor injury. Council [1951] Watson v
British Boxing Board of
e.g. risk of blindness (Paris v Stepney) or brain damage (Watson) Control (BBBC) Ltd [2001]
It is necessary to ascertain how easily the risk could have been avoided and to balance
Practicality
the cost and practicality of these precautions against the severity of the risk. If it
Latimer v AEC Ltd [1953]
would be unreasonable to require them to take the necessary precautions, even
against a clearly foreseeable risk, the court will accordingly not impose liability.
ESTABLISHING A BREACH
The value to society of the defendant’s activity is a factor the courts consider. If the defendant has taken a risk with the
aim of preserving or protecting life, limb, or property, then this may be justified.
Benefit
Fireman did not secure equipment properly (and it injured a fireman) but was not a
Watt v Hertfordshire County
breach as the risk of injury was small, and the ultimate aim of saving life justified
Council [1954]
taking the risk. Where life is at stake, abnormal risks may be justified.
If D can show they have acted in accordance with a practice usually followed by others in that field, they may escape
Common
liability.
Practice
However, note that the court can always rule that the common practice is itself Bolam (above)
negligent if it deems it to be illogical. Bolitho (above)
The courts must assess the defendant’s actions against the knowledge in the
knowledge at
profession and/or accepted practice at the time of the alleged breach.
State of
Roe v Minister of Health
time
Unforeseeable risks cannot be anticipated and, therefore, failing to guard against
[1954]
them will not be regarded as negligence.
e.g. seepage of chemical through invisible cracks - risk not known in Roe
All relevant factors (common practice, state of the art etc.) need to be balanced to The Wagon Mound (No 2)
B
determine if there has been a breach [1967]
The burden is on the claimant to prove that the defendant breached the duty of care on the balance of probabilities.
Where the incident that caused the loss led to a criminal prosecution, the claimant may be s.11 of the Civil Evidence Act
Burden of Proof
helped by relying on any conviction if it is evidence of careless conduct 1968
Where the only plausible explanation for the claimant’s injuries is negligence by D, the maxim
Res ipsa loquitur
res ipsa loquitur (‘the facts speak for themselves’) can be applied.
For res ipsa loquitur to apply:
1) The thing causing the damage was under the control of D or someone they are responsible
Scott v London and St
for
Katherine Docks Co 1865 3
2) The accident would not normally happen without negligence &
H&C 596
3) The cause of the accident is unknown to the claimant i.e. the claimant has no direct
evidence of the defendant's failure to take care
