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230 Chapter 8The tort of negligence

In deciding whether or not a duty has been breached, the courts tend to attach particular

importance to four factors:

(i) The likelihood of the claimant suffering harm.

(ii) The potential seriousness of injury which the claimant was likely to suffer.

(iii) The cost of making sure that no harm was caused.

(iv) The usefulness of the defendant’s actions.

The first two factors are weighed against the second two. If the first two are greater than the

second two, then it is likely that the duty will have been breached. If they are smaller it is

likely that it will not.

This sounds rather complicated, but the following two cases illustrate that it is relatively

straightforward.

Figure 8.2 Breach of a duty of care: factors to be taken into account

Bolton vStone (1951) (House of Lords)

A cricket ball was hit right out of a cricket ground and struck and injured the claimant. The

ball cleared a 7 foot high fence built on a 10 foot high bank. The claimant was 22 yards

beyond the fence, about 100 yards from the wicket. About half a dozen balls had been hit

out of the ground in the previous 30 years.

HeldThe duty was not breached. A and B (the likelihood of harm and the potential ser-

iousness of injury) were much smaller than C (the cost of preventing the accident).

CommentThe usefulness of playing cricket (D) was not much of a factor in this case.

However, it was accepted that people need to take recreation and that cricket is a tradi-

tional type of English recreation.

Paris vStepney Borough Council (1951) (House of Lords)

The claimant, who had the use of only one eye, was told by his employers to hammer and

grind the underneath of a vehicle. He was not given protective goggles and, while hammer-

ing, he lost the use of his good eye when this was pierced by a shard of metal.