ABSTRACT
Once it has been established that the defendant owed a duty of care to the plaintiff, for that kind of harm, it must be proved, on the balance of probabilities, that the defendant was in breach of that duty, by failing to take the care which a reasonable man would take, in those circumstances, to avoid reasonably foreseeable harm to the plaintiff. Although the question of whether or not a defendant has breached a standard of care is one of fact, there will be certain guiding principles used by the courts when making such a value judgment. These include foreseeability, the magnitude and seriousness of the risk, the probability of the harm materialising, the social utility of the activity and the practicability of taking precautions, the nature of the risks, the context, characteristics of the plaintiff or defendant and, to some extent, standard and approved practice (Bolton v Stone (1951)). A defendant is not liable if the harm to the plaintiff was not foreseeable as in Roe v Minister of Health (1954). If there is a greater risk of a serious outcome to the plaintiff then a higher standard of care is required.14
