First Principles of Business Law

12. Negligence

12 (b) 2.1.  Elements of liability: a breach of the duty of care

A is working in his front garden, building a low wall down the side of his driveway. At mid-morning he becomes thirsty. He leaves his tools and a wheelbarrow half full of bricks where they are, and he goes into the house to get a drink of water. He does not close his front gate. Assuming that, in these circumstances, A owes a duty of care to various persons, such as those entering his garden, what steps should A take to prevent foreseeable harm from occurring?

(a) If A has dangerous things in his garden and someone is injured by those things, then on those facts alone, it is clear that A has breached his duty of care.

(b) If A has dangerous things in his garden and someone is injured by those things, A will not be in breach of his duty of care if he has done what a reasonable person would have done in the circumstances to prevent the foreseeable harm from occurring.