Introduction

• claimant (C) must show on the balance of probabilities: defendant (D) owed a duty of care, breached that duty by failing to meet standard of care required & as a result C suffered loss or damage which is not too remote
• Breach of duty two-stage test: what standard of care D should have exercised (question of law) & whether D's conduct fell below the required standard (question of fact)

Reasonable man

• general rule: standard of care required is objective, that of a reasonable man

  Blyth v Birmingham Waterworks (1856) 11 Exch 781

  • Baron Alderson: .. Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The standard demanded is thus not of perfection but of reasonableness. It is an objective standard taking no account of the defendant's incompetence - he may do the best he can and still be found negligent...
• reasonable person described by judges in many memorable ways

  Hall v Brooklands Auto-Racing Club [1933] 1 KB 205

  • Greer LJ: .. the man on the Clapham omnibus...

  McFarlane v Tayside Health Board [1999] 3 WLR 1301

  • Lord Steyn: .. commuters on the London Underground...
• objective test: What would a reasonable person have foreseen in the particular circumstances? D required to take as much care as a reasonable person in his position

  Glasgow Corp v Muir [1943] AC 448

  • Lord MacMillan: .. standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question...

Risk

• reasonable person would consider risk when deciding to act in a certain way

Likelihood of injury or damage

• likelihood of injury or damage should be considered, generally, the less likely the lower the standard of care required

  Bolton v Stone [1951] AC 850

  Facts:

  • plaintiff (P) hit by a cricket ball from D's cricket club
  • cricket ground had a high protective fence, approx. 6 balls had been hit out the ground in many years & no previous injuries caused

  Issue:

  • did D breach their duty of care?

  Held:

  • D not breached duty of care: risk of injury caused by a ball being hit out of the ground was minimal, D had taken preventative measures & reasonable person would not have anticipated the injury caused

  Miller v Jackson [1977] QB 966

  Facts:

  • P's house was damaged by cricket balls from D's club
  • approx. 10 balls were hit out of the ground each season, despite D erecting a protective wall

  Issue:

  • did D breach their duty of care?

  Held:

  • D was in breach of the standard expected of a reasonable person: frequency of problems meant more steps to stop were needed
  • risk was much greater in this case than in Bolton v Stone [1951]
• however, not always reasonable to ignore a small risk

  Haley v London Electricity Board [1965] AC 778

  Facts:

  • P, a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by D
  • hammer was left to warn people that a hole had been dug, which was common practice at the time

  Issue:

  • did D breach their duty of care?

  Held:

  • House of Lords: it was reasonably foreseeable that unaccompanied blind pedestrians may walk that route & therefore D should have taken extra precautions
  • reasonable person should not ignore the risk to blind pedestrians, especially due to the gravity of the potential injury & limited cost of more robust precautions

Seriousness of injury or damage

• seriousness of injury or damage should be considered, generally, more serious the potential injury the greater the standard of care required
• if D is aware that a particular individual has an enhanced risk of serious injury, this too increases the obligation to take care

  Paris v Stepney Borough Council [1951] AC 367

  Facts:

  • P had an accident in which he lost his sight in one eye, while working for D
  • Prior to the incident, D knew P was already blind in one eye, injury may have been prevented if P had been provided protective goggles

  Issue:

  • did D's knowledge of P's existing disability increase the standard of care required?

  Held:

  • House of Lords: probability of injury occurring was very small, but consequences were very serious, therefore, D should have taken extra care

Precautions

• courts will consider cost & practicality of measures D could have adopted to prevent the injury or damage
• likely unreasonable if risk would have been substantially reduced at a low cost & D failed to take necessary precautions
• likely reasonable if precautions would only produce very limited reduction in risk & cost a lot
• lack of resources not usually accepted as defence for D failing to exercise reasonable care
• generally, the greater the risk of injury, the greater the requirement to take precautions

  Latimer v AEC Ltd [1953] AC 643

  Facts:

  • P injured after slipping on an oily floor in D's factory
  • oil due to water damage from an exceptionally heavy storm, D put up warning signs, informed staff & used all available sawdust & sand to soak up liquid

  Issue:

  • did D take all necessary precautions?

  Held:

  • D had taken all reasonable steps: only alternative would have been to close the factory, which was not a practical or reasonable solution

  Haley v London Electricity Board [1965] AC 778

  Facts:

  • P, a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by D
  • hammer was left to warn people that a hole had been dug, which was common practice at the time

  Issue:

  • did D take all necessary precautions?

  Held:

  • House of Lords: D not taken all practical precautions, for example a fence around the hole would have significantly reduced the risk of injury at a low cost

Defendant's purpose

• if D's activity has no social utility or is unlawful, a very high degree of care required to justify even a small risk
• the greater social utility of D's conduct, the less likely D will be held to be negligent

  Daborn v Bath Tramways Motor Co. Ltd [1946] 2 All ER 333

  Facts:

  • during World War II, P was injured in a collision with D's ambulance
  • ambulance was a left-hand drive vehicle & not fitted with signals, accident happened when D turned after attempting to signal with her hand

  Issue:

  • did D's purpose lower the standard of care required?

  Held:

  • Court of Appeal: converting the vehicles would have been prohibitively difficult & expensive, D was acting public interest (providing ambulance service during wartime), value to society meant there was lower standard of care required
  • Asquith LJ: .. if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served if sufficiently important, justifies the assumption of abnormal risk...

  Watt v Hertfordshire County Council [1954] 1 WLR 835

  Facts:

  • P, a fire fighter, was injured by heavy equipment needed to assist at a serious road accident, when it slipped off a lorry
  • D ordered the use of lorry to carry the equipment as the usual vehicle was assigned was engaged in other work

  Issue:

  • did D breach duty of care by allowing an ordinary lorry to carry the equipment?

  Held:

  • D reached standard of care required: benefit of saving the woman trapped at accident was greater than the risk of injuring the fire fighters by using unsuitable lorry for carrying equipment
  • Lord Denning: .. in measuring due care one must balance the risk against the measures necessary to eliminate the risk... the saving of life or limb justifies taking considerable risk ...
• however, the nature of the work of the emergency services does not make them immune from Negligence claims

  Armsden v Kent Police [2009] EWCA Civ 631

  Facts:

  • driver killed in collision with D's police car
  • D was driving fast to attend incident & did not use car's siren

  Issue:

  • did D take reasonable care?

  Held:

  • Court of Appeal: D breached duty of care, by failing to use the siren

Sport

• participants in sport owe duty of care to other participants & spectators
• standard of care takes into account: sport is viewed as socially desirable & therefore accepted some risks justified

  Condon v Basi [1985] 1 WLR 866

  Facts:

  • P's leg broken in a tackle by D during local league football match

  Issue:

  • did D breach necessary standard of care?

  Held:

  • D's tackle was reckless & therefore breached standard of care expected of a local league player
  • Sir John Donaldson MR: .. The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match...

  Wilks v Cheltenham Cycle Club [1971] 1 WLR 668

  Facts:

  • P injured when a spectator at motorbike race, when D's bike came off the track

  Issue:

  • did D breach necessary standard of care?

  Held:

  • standard of care required should take account of D's desire to win
  • Edmund Davies LJ: .. although in the very nature of things the competitor is all out to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise such degree of care as may reasonably be expected in all the circumstances.. I would hold him liable only for damages caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable...

Common practice

• general rule: compliance with accepted practice within trade or profession provides D with good argument he met the required standard of care, but not necessarily mean D's conduct is not negligent

  Re The Herald of Free Enterprise (1987)

  Facts:

  • Zeebrugge ferry disaster: 193 passengers & crew killed & hundreds more injured when D's ship capsized
  • D set sail with bow doors open, which led to water entering the ship, however, it was common practice at the time

  Issue:

  • was the common practice in breach of the required standard of care?

  Held:

  • D's actions were negligent, despite the fact it was commonplace
• non-compliance with statutory standards, regulations & Codes of Practice can mean that D is liable for tort of breach of statutory duty

Current state of knowledge

• current state of knowledge must be used to determine what reasonable person, in D's situation, could have foreseen

  Roe v Minister of Health [1954] 2 QB 66

  Facts:

  • Ps paralysed after spinal anaesthetics, administered by D, were contaminated through invisible cracks in the glass vial
  • at the time, risk of this happening was not appreciated by competent anaesthetists & such contamination had not happened before

  Issue:

  • had the required standard of care been met?

  Held:

  • D not breached duty of care: in 1954, when case was heard the problem was understood, but this was not known at the time, in 1947
  • Denning LJ: .. the court must not look at the 1947 accident with 1954 spectacles...

Limitations

• there are limitations on the meaning of the term reasonable

  Fardon v Harcourt-Rivington [1932] All ER 81

  Facts:

  • P lost his eye after it was damaged by a splinter of glass from D's car
  • D left his dog inside his car & dog jumped around, in an out of character way, causing the splinter

  Issue:

  • had D acted reasonably?

  Held:

  • D acted reasonably & P could not recover damages
  • Lord Dunedin: .. People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities...

  Carmarthenshire CC v Lewis [1955] AC 549

  Facts:

  • P's husband was killed when he swerved to avoid hitting a child in road
  • at time child was under care of a nursery run by D (local council) & P sought damages D

  Issue:

  • had D acted reasonably?

  Held:

  • D liable: event was rare but it was reasonably possible & D should have taken precautions in the playground design

  Mansfield v Weetabix [1998] 1 WLR 1263

  Facts:

  • P's shop was damaged when D drove his lorry into the building
  • D lost control of his vehicle as he was suffering from a undiagnosed medical condition

  Issue:

  • what standard of care should apply to D?

  Held:

  • D not be in breach if he met the standard of the reasonable driver who is unaware of his condition
  • Leggatt LJ: .. To apply an objective standard in a way that did not take account of [the driver's] condition would be to impose strict liability. But that is not the law...

Special Standards

• special standards of care may apply, which take into account the special characteristics of D

Skilled defendant

• skilled D will be required to carry out a task to the standard of a reasonably competent skilled person

  Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

  Facts:

  • P suffered injury after receiving treatment at D's hospital
  • inconclusive debate between medical experts about whether the treatment had been administered in the safest way

  Issue:

  • what standard of care is required?

  Held:

  • junior doctor must show the same degree of skill as a reasonably compeeant doctor
  • Bolam test: means a doctor is not in breach of his duty if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion
  • McNair J: ..A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art...

  Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

  Facts:

  • P, mother of victim (V) who suffered serious brain damage following respiratory failure & died at D's hospital
  • doctor did not attend (due to a technology failure) until after V died, P argued doctor should have attended & carried out a specific procedure to save V's life
  • doctor testified she would not have carried out the procedure even if she had attended & her evidence was backed by a number of medical professionals

  Issue:

  • did D meet standard of care?

  Held:

  • trial judge applied Bolam test & found no breach of duty
  • House of Lords established a court may reject the accepted practice of a profession, if it can be shown that the practice is not logically supportable
  • Lord Browne-Wilkinson: .. the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice...

Under skilled defendant

• court will determine standard of care required for relevant activity in each case

  Wells v Cooper [1958] 2 QB 265

  Facts:

  • P injured falling down steps leading to D's door
  • D fitted door handle which broke & caused accident

  Issue:

  • did D meet standard of care?

  Held:

  • D executed work to appropriate standard: standard of reasonably competent amateur carpenter (lower than standard expected of professional carpenter working for reward), sort of job a reasonable householder might do for himself
  • however, if D attempts job which exceeds his capability & usually requires professional work, may be negligent for D to have even undertaken
• generally, inexperience does not lower required standard of care

  Wilsher v Essex Area Health Authority [1987] QB 730

  Facts:

  • P left blinded by treatment at D's hospital
  • P born prematurely & junior doctor negligently administered excess oxygen, causing the injury

  Issue:

  • did D meet the standard of care required for a junior doctor?

  Held:

  • Court of Appeal & House of Lords: D fallen below required standard of care, junior doctor expected to show competence of any other doctor in same job
  • patient's legitimate expectation of competent treatment not altered by experience of doctor
  • inexperienced doctor should ask for expert assistance if task beyond his ability
• policy reasons may exist for not taking into account D's inexperience

  Nettleship v Weston [1971] 3 All ER 581

  Facts:

  • P injured when D, a learner driver, crashed into a lamppost

  Issue:

  • did D meet the standard of care required of a learner driver?

  Held:

  • D not meet standrad of care: learner driver must reach standard of reasonably competent driver
  • liability insurance compulsory for all drivers, therefore, additional risk is accounted for by higher premiums for learners
• court will determine standard of care for each activity individually
• D cannot argue lower standard of care applies due to lack of skill, for a skilled D a higher standard of care may apply

Children

• child Ds expected to show care as reasonably expected of ordinary child of same age

  Mullin v Richards [1998] 1 WLR 1304

  Facts:

  • P's sight damaged during 'sword fight' with D
  • 15 year old children were play fighting with plastic rulers, one snapped causing the injury

  Issue:

  • did child D meet required standard of care?

  Held:

  • D not liable: insuffcinet evidence accident was foreseeable
  • established relevant factor is age in determining standard of care required for child Ds
  • Hutchison LJ: .. the question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant's situation would have realised gave rise to a risk of injury, it is whether an ordinary, prudent and reasonable 15-year old schoolgirl in the defendant's situation would have realised as much...
• very young children rarely liable but older children may be held to standard of care required of reasonable adult

  Gorely v Codd [1967] 1 WLR 19

  Facts:

  • P injured by air gun pellet accidently fired by D, a 16 year old boy, when larking about

  Issue:

  • did D meet required standard of care?

  Held:

  • D liable: expected to meet standard of care required for reasonable adult