Breach of duty
Did D behave as a reasonable man would in the same situation?- to assist the court in determinig of breach happened certain tests have been established:
- Degree of risk- if there is a high risk of harm the reasonable man would take greater care. Some risks so small they should be giben flexibility. eg. Bolton V Stone- man injured by ball falling from cricket ground. There was a high fence around ground and no one had been injured in last 30 years. No negligence as reasonable man would justify disregarding risk.
- Magnitude of likely harm- how serious injury could foreseeably be. If this is high D must take care to avoid liability for accidents. eg. Paris V Stephney Boroiugh Council-C blind in one eye and D didnt give him goggles in job. Blinded in other eye from metal so D was liable, however he wouldnt have been if C had sight in both eyes. Greater risk to C meant greater care should have been taken.
- Cost and Practicality of Preventing Risk- if cost of taking precautions is more than risk D willnot be liable. eg. Latimer V AEC- factory flooded so D put sawdust down with signs. C slipped and injured but D coiuldnt have done anymore within reason to eliminate risk (closing factory not proportinate to risk)so not liable.
Breach of duty
Potential Benefit of Risk- weigh up if some risks have potential benefits to society. eg. Watt V Herforshire County Council- C (fireman) rushed to serious fire with equipment no secure on fire engine. Equipment fell and injured C. Duty of care was not breached as the risk did not outweigh the survival of people in fire.
Duty of Care
Established in case of Caparo v Dickman. Was damage or loss foreseeable?- the reasonable person would have foreseen some damage to C at time of negligence. Kent V Griffiths- ambulance failed to arrive to take man to hospital suffering an asthma attack. As result he had heart attack, this was foreseeable. Is there sufficient proximity?- closeness in terms of time, space and relationship. eg. Bourhill V Young- Man drove faster when police car chased him. Caused police car to crash but there was not enough closeness. Is it fair, just and reasonable to impose a duty?- 'policy test' to limit opening 'floodgates'. Mostly yes except emergency services as this could restirict their attemot to help. eg. Mulcahy V MOD- soldier suffered damage to hearing but no duty was imposed because of policy issue. If yes to all three duty is established.