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Chapter 3

Breach of duty of care

In order for a claim to be successful, a claimant must not only prove that a duty of
care existed, but also that the duty was breached by the defendant.

Was there a breach?

Establishing if there has indeed been a breach is a question of fact. Each case must
be viewed separately on its own facts.

It is usually up to the claimant to prove that there has been a breach, or
in other words that the defendant did not take reasonable care. In
some circumstances, the facts of the case speak for themselves. This is
referred to as the principle of res ipsa loquitor. In these situations it is
felt that the fact there is a harm shows there must have been a breach.

The claimant will then have to show that the ‘res’ or ‘thing’ which
caused the damage was in the control of the defendant and the
defendant has to prove that the cause of the injury was not his
negligence (in other words the burden of proof shifts from the claimant
to the defendant).

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