Proving breach

Question 1

Preliminary matters to check for breach

Answer 1

requisite foreseeability
date for assessing breach
inevitable accidents

Question 2

Requisite foreseeability

Answer 2

Wagon Mound (No 2): must always be foreseeable because if it wasn’t why would a reasonable person have done anything to prevent it?
Bolton v Stone: was some accident reasonably foreseeable
Paris v Stepney BC: C only had one functioning eye and so was particularly susceptible to becoming blind- accident was likely to be reasonably foreseeable

Question 3

Date for assessing breach

Answer 3

Roe v Ministry of Health: breach must be considered at the date where it happened- “we must not look at what happened in 1949 through 1954 spectacles”

Question 4

Distinguishing ‘inevitable accidents’

Answer 4

Knightley v Johns: nothing a reasonable D could have done differently

Question 5

Testing precautionary steps available

Answer 5

Bolton v Stone: source of the quadrant- probability of injury occurring; likely gravity of the injury; cost to implement the steps; social/economic utility of D;s activities; no breach
Paris v Stepney BC: breach
Watt v Hertfordshire CC: no breach
Tomlinson v Congleton BC: high support for the quadrant; no breach
Collins-Williamson v Silverlink Train Services: no systemic breach
Consider the statutes:
- Wilkin-Shaw v Fuller: “it does not seem to me that section 1 adds anything to the common law” (compensation act)
- Ashton v City of Liverpool Young Men’s Christian Association: Acts were engaged but held it was not enough to save the YMCA from liability

Question 6

Bolam/Bolitho test

Answer 6

Bolam v Friern Hospital Management Committee: if D acted in line with a practice accepted as proper by a reasonable body of people of that profession he is not negligent
De Freitas v O’Brien: minority opinion is enough for the test to be met
Bolitho v City and Hackney HA: applies to all professionals- BUT if it can be demonstrated that the professional opinion cannot withstand analysis, judge is entitled to hold that the body of opinion is not reasonable or responsible (per LBW)
Adams v Rhymney Valley DC: test not limited to the professional context- expert opinion supported the council’s use of key-operated locks

Question 7

Res ipsa loquitor

Answer 7

‘the thing speaks for itself’
Scott v London and St Katherine Docks:
- (1) incontrovertible facts about the act and outcome speak for themselves
- (2) D had exclusive control over what caused C’s injury
- (3) D has no plausible non-negligent explanation of what caused the accident to occur
- (4) the accident was of a kind that does not normally occur in the absence of want of care/negligence