Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

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368 Part 3 Tort Law restricted or taking place at all. In addition, the court can look at whether the steps required would discourage people from participating in the carrying out of desirable activities. The Compensation Act 2006 was introduced partly to counteract the public perception of a compensation culture, whereby the organisation of activities could lead to liability in negligence if there was any risk of injury to any participants. For example, there is always a risk that a child may be injured if a school arranges outside activities, but the educational value of such activities may outweigh the risks involved. The Act was not intended to change the law but to codify the common law, and make it clear that an appropriate standard of care would be met where desirable activities were carried out without the need for extremely stringent measures. Section 1 of the Compensation Act 2006 states that, when a court is considering a claim in negligence, it may, in determining whether a defendant should have taken particular steps to meet a standard of care (either by taking precautions against a risk or other action), have regard to whether a requirement to take those steps might: (a) Prevent a desirable activity from being undertaken at all, to a particular extent, or in a particular way, or (b) Discourage persons from undertaking functions in connection with a desirable activity. Section 2 states that an apology, an offer of treatment, or other solution does not amount to an admission of negligence. The Compensation Act 2006 applies to the standard of care to be applied in negligence cases and in cases where there may be a breach of statutory duty, such as that imposed by the Occupiers Liability Acts 1957 and 1984 (see Chapter 12). Proving the Breach of duty of Care As a claim for negligence is a civil claim, the claimant must prove on the balance of probabilities that the defendant breached the duty of care. In some cases, this can be difficult. There are two significant ways in which a claimant may be helped in establishing a breach of a duty of care. Firstly, the Civil Evidence Act 1968, s 11, provides that a conviction of a criminal offence shall be proof that the offence was committed. Therefore, a claimant may rely on a defendant’s conviction for careless driving in a road accident to prove negligence in a civil claim for damages. Secondly, a claimant may be able to rely on the doctrine of ‘res ipsa loquitor ’ (the thing speaks for itself). This doctrine can be used when, on the face of it, the evidence seems to clearly suggest that the defendant must have breached his duty of care for the injury to occur, despite the fact that the claimant cannot prove exactly how the injury was caused. If the court allows the claimant to rely on res ipsa loquitor, the burden of proof is reversed and, instead of
Chapter 11 The Tort of Negligence 369 the claimant having to prove that the defendant had breached his duty of care, the defendant will have to prove, on the balance of probabilities, he has not breached his duty of care. The presumption that the accident was caused by the defendant’s negligence applies when the following criteria are present: • The defendant was in control of the thing or situation that caused the damage. • The damage would not normally have occurred without carelessness by some person. • The exact cause of the accident cannot be determined. As the principle relies on the absence of knowledge of the exact facts, it will not apply if the facts of what actually happened are known or can be discovered. Byrne v Boadle (1863) Facts: A barrel of flour fell from the defendant’s warehouse and injured the claimant who was passing by. No explanation of how the barrel fell could be established. Decision: This was a case of ‘res ipsa loquitor’. The burden of proof was on the defendant to show he had not broken his duty of care. The defendant could not do this and, therefore, the claimant succeeded in his action for negligence. Ward v Tesco Stores (1976) Facts: The claimant slipped on some yoghurt spilled on the floor of the defendants’ supermarket. The defendants would have breached their duty of care if steps had not been taken within a reasonable time to clear it away. The claimant could not prove how long the yoghurt had been on the floor, but in the absence of any explanation it was likely the defendants were at fault. Decision: The defendants were liable, on the basis that the claimant had slipped and they could not positively establish that they had not been negligent. Key Concept Where the evidence clearly suggests that the defendant must have breached his duty of care even though the claimant cannot prove exactly how the injury was caused, the burden of proof is reversed. The defendant will have to prove, on the balance of probabilities, he has not breached his duty of care.
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