Introduction

In order to prove liability in Negligence, the claimant must show on the balance of probabilities that: the defendant owed a duty of care, breached that duty by failing to meet the standard of care required and as a result the claimant suffered loss or damage which is not too remote.

Breach of duty requires the defendant to have been at fault by not fulfilling their duty towards the claimant. The court will apply a two-stage test: firstly, a question of law, what standard of care the defendant should have exercised and secondly, a question of fact, whether the defendant's conduct fell below the required standard.

Reasonable man

As a general rule, the standard of care required is an objective one, 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....

The reasonable man is now often referred to as the reasonable person and has been described by judges in many memorable ways in cases.

• 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....

The reasonable person test is an objective one: What would a reasonable person have foreseen in the particular circumstances? Therefore, the defendant is 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

A reasonable person would consider the possible risk when deciding to act in a certain way and in determining the standard of care required. The magnitude of risk should be considered. This means taking into account the likelihood that the defendant's conduct could cause damage or injury and how serious that damage or injury would likely to be.

Likelihood of injury or damage

In looking at risk, the likelihood of injury or damage should be considered. Generally, the less likely injury or damage may be caused, the lower the standard of care required.

• Bolton v Stone [1951] AC 850

  Facts:

  The plaintiff was hit by a cricket ball which came from the defendant's cricket club. The cricket ground had a five metre high protective fence. Only approximately six balls had been hit out the ground in a number of years and there had never been any injuries caused.

  Issue:

  Did the risk mean that the defendant had breached their duty of care?

  Held:

  The risk of injury caused by a ball being hit out of the ground was minimal, the defendant had taken preventative measures and a reasonable person would not have anticipated the injury caused. Therefore, the defendant had not breached the duty of care as it had reached the standard of care required.

• Miller v Jackson [1977] QB 966

  Facts:

  The plaintiffs house was damaged on several occasions by cricket balls from the defendant's cricket club. Approximately six to ten balls were hit out of the ground each season, despite the defendant erecting a five meter protective wall.

  Issue:

  Did the magnitude of the risk mean the defendant had breached their duty of care?

  Held:

  The defendants were in breach of the standard expected of the reasonable person. The frequency of the problems meant that the defendant should have taken more steps to stop the cricket balls. The risk was much greater in this case than in Bolton v Stone [1951].

However, it may not always be reasonable to ignore a small risk.

• Haley v London Electricity Board [1965] AC 778

  Facts:

  The plaintiff a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by the defendant. The hammer was left to warn people that a hole had been dug in preparation for underground work, which was common practice at the time.

  Issue:

  Did the magnitude of the risk mean the defendant had breached their duty of care?

  Held:

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

Seriousness of injury or damage

The seriousness of possible injury or damage caused should also be taken into account by a reasonable person. The more serious the potential injury, the greater the standard of care required. Similarly, if the defendant is aware that a particular individual is at an enhanced risk of serious injury, this too increases the obligation to take care.

Precautions

The courts will consider the cost and practicality of measures the defendant could have adopted in order to prevent the injury or damage. The defendant is likely to have acted unreasonably if the risk would have been substantially reduced at a low cost and the defendant failed to take the necessary precautions. However, if the precautions would only produce a very limited reduction in the risk and cost a lot, then a defendant is more likely to have acted reasonably. Essentially, the greater the risk of injury, the greater the requirement to take precautions. A lack of resources is not usually accepted as defence for the defendant failing to exercise reasonable care.

• Latimer v AEC Ltd [1953] AC 643

  Facts:

  The plaintiff injured his ankle after slipping on an oily floor in the defendant's factory. The oily floor was due to water damage from an exceptionally heavy storm. The defendant had put up warning signs, informed staff of the dangers and used all available sawdust and sand to soak up liquid.

  Issue:

  Had the defendant taken all necessary precautions?

  Held:

  The defendant had taken all reasonable steps to prevent an accident in the circumstances. The 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:

  The plaintiff, a blind man, was injured when he tripped over a hammer on a pavement, left by workmen employed by the defendant. The hammer was left to warn people that a hole had been dug in preparation for underground work, which was common practice at the time.

  Issue:

  Could the defendant reasonably have taken more precautions?

  Held:

  The House of Lords found that further precautions, for example erecting a fence around the hole would have significantly reduced the risk of injury at a low cost. The defendant had not taken all practical precautions and therefore was in breach of the standard of care required.

Defendant's purpose

The greater the social utility of the defendant's conduct, the less likely it is that the defendant will be held to be negligent. If the defendant's activity has no social utility or is unlawful, the defendant will be required to exercise a very high degree of care to justify even a small risk of harm to others.

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

  Facts:

  During World War II, the plaintiff was injured in a collision with the defendant's ambulance. The ambulance was a left-hand drive vehicle which was not fitted with signals. The accident happened when the defendant turned after attempting to signal with her hand.

  Issue:

  Did the defendant's purpose lower the standard of care required?

  Held:

  The Court of Appeal found that converting the left-hand drive vehicles would have been prohibitively difficult and expensive. By providing an ambulance service during wartime, the defendant was acting in public interest and this value to society meant that there was a 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:

  The plaintiff, a fire fighter, was injured by heavy lifting equipment needed to assist at a serious road accident, which had slipped off the back of a vehicle. The fire officer, employed by the defendant, had ordered the use of an ordinary lorry to carry the equipment as the usual vehicle was engaged in other work at the time.

  Issue:

  Had the defendant breached their duty of care by allowing an ordinary lorry to carry the equipment?

  Held:

  The court found that the benefit of saving the woman trapped in the accident was greater than the risk of injuring the fire fighters by using an unsuitable lorry for carrying the equipment. Therefore, the defendant had reached the standard of care required.

  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:

  A was driver killed in a collision with the defendant's police car. The police car was driving fast to attend an incident and did not use the car's siren when approaching a junction with a side road, where the accident occurred.

  Issue:

  Had the defendant taken reasonable care?

  Held:

  The Court of Appeal found the driver of the police car was in breach of his duty of care, by failing to use his siren.

Sport

It is well established that a participant in sport owes a duty of care to other participants and also to spectators. Furthermore, sport is viewed as a socially desirable activity and there is an acceptance that participation brings some risks, which may be justified. Therefore, the standard of care required in the context of sports is assessed on this basis.

• Condon v Basi [1985] 1 WLR 866

  Facts:

  The plaintiff's leg was broken in a tackle by the defendant during a local league football match.

  Issue:

  Had the defendant breached the necessary standard of care?

  Held:

  The defendant's tackle was reckless and therefore he was in breach of the 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:

  The plaintiff was injured when he was a spectator at a motorcycle race. The defendant's motorbike came off the track and hit the plaintiff.

  Issue:

  What was the standard of care owed by the defendant?

  Held:

  The standard of care required should take account of the defendant'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. For my part, therefore, 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

Generally, compliance with accepted practice within a trade or profession provides the defendant with a good argument that he has met the required standard of care. However, it does not necessarily mean a defendant's conduct is not negligent. Non-compliance with statutory standards, regulations and Codes of Practice is not necessarily evidence of negligence but can mean that a defendant is liable for the tort of breach of statutory duty.

Current state of knowledge

The current state of knowledge must be used to determine what a reasonable person, in the defendant's situation, could have foreseen.

Limitations

There are some limitations on the meaning of the term reasonable.

• Fardon v Harcourt-Rivington [1932] All ER 81

  Facts:

  The plaintiff, a passer-by, lost his eye after it was damaged by a splinter of glass from the defendant's car. The defendant had left his dog inside his car and the dog had jumped around, in an out of character way, this had damaged the car and caused the splinter.

  Issue:

  Had the defendant acted reasonably?

  Held:

  The defendant had not acted unreasonably and therefore, the plaintiff 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:

  The plaintiff's husband, a lorry driver, was killed when he swerved to avoid hitting a child in the road. The child wandered onto the road when under the care of a nursery run by the defendant, the local council. The plaintiff sought damages from the council.

  Issue:

  Had the defendant acted unreasonably?

  Held:

  The event was rare but it was a reasonably possible and therefore the defendant was liable. The defendant should have taken precautions in the playground design.

• Mansfield v Weetabix [1998] 1 WLR 1263

  Facts:

  The plaintiff's shop was damaged when the defendant drove his lorry into the front of the building. The defendant lost control of his vehicle as he was suffering from a medical condition that he was unaware of at the time.

  Issue:

  What standard of care should apply to the defendant?

  Held:

  The defendant will not be in breach if he has 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 the defendant.

Skilled defendant

A skilled defendant will be required to carry out a task to the standard of a reasonable skilled person.

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

  Facts:

  The plaintiff suffered injury after receiving treatment at the defendant's hospital. There was inconclusive debate between medical experts about whether the treatment had been administered in the safest way.

  Issue:

  What standard of care is required?

  Held:

  A junior doctor must show the same degree of skill as a reasonable doctor. Furthermore, the Bolam test means that 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:

  The plaintiff was the mother of the victim, a two year old child, who suffered serious brain damage following respiratory failure and eventually died at the defendant's hospital. The child was taken to the hospital, however a doctor did not attend (due to a technology failure) until after the victim died . The plaintiff argued that the doctor should have attended and carried out a specific procedure, which would have saved the victim's life. The doctor testified that she would not have carried out the procedure even if she had attended and her evidence was backed by a number of medical professionals.

  Issue:

  Had the defendant breached their duty of care?

  Held:

  The trial judge applied the Bolam test and found that there was no breach of duty. However, on appeal to the House of Lords, it was established that 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

The court will determine the standard of care required for the relevant activity in each case.

• Wells v Cooper [1958] 2 QB 265

  Facts:

  The plaintiff was injured after falling down the steps leading to the defendant's door. The defendant had fitted the door handle in which came away in the plaintiff's hands, causing the accident.

  Issue:

  Did the defendant meet the appropriate standard of care?

  Held:

  The defendant had executed the work to the appropriate standard, when judged against the standards of a reasonably competent amateur carpenter. This standard is clearly lower than would be expected of a professional carpenter working for reward. It was also noted that this was the sort of job that a reasonable householder might do for himself. However, if a defendant attempts a job which exceeds his capability and usually requires professional work then it may be negligent for the defendant to have even undertaken the work.

Generally, inexperience does not lower the required standard of care.

• Wilsher v Essex Area Health Authority [1987] QB 730

  Facts:

  The plaintiff was a baby that had been left blinded by treatment in the defendant's hospital. The plaintiff was born prematurely and a junior doctor had negligently administered excess oxygen, which caused the injury.

  Issue:

  What is appropriate standard of care for a junior doctor?

  Held:

  The House of Lords agreed with the Court of Appeal finding that the defendant had fallen below the required standard of care. A junior doctor is expected to show the level of competence of any other doctor in the same job. A patient's legitimate expectation of competent treatment is not altered by the experience of the doctor. An inexperienced doctor should ask for expert assistance if the task is beyond his ability.

Policy reasons may exist for not taking into account the defendant's inexperience.

• Nettleship v Weston [1971] 3 All ER 581

  Facts:

  The plaintiff was injured when the defendant, a learner driver, crashed into a lamppost

  .

  Issue:

  What is appropriate standard of care for a learner driver?

  Held:

  A learner driver must reach the standard of the reasonably competent driver. Liability insurance is compulsory for all drivers and, therefore, the additional risk that learner drivers create is accounted for by higher premiums for inexperienced drivers.

Therefore, a court will determine the standard of care required for each activity individually. The defendant cannot argue a lower standard of care applies due to his lack of skill. For a defendant who purports to be skilled, for example a doctor, a higher standard of care may apply. A defendant who does not claim a professional skill but is carrying out work requiring certain skills, must still meet the minimum standard required by the task undertaken. If he undertakes a task which is well beyond his capabilities that may be negligent in itself.

Children

Child defendants will be expected to show such care as can reasonably be expected of an ordinary child of the same age.

• Mullin v Richards [1998] 1 WLR 1304

  Facts:

  The plaintiff's sight was damaged during a 'sword fight' with the defendant. The 15 year old children had been play fighting with plastic rulers, one snapped causing the injury.

  Issue:

  Did the child defendant reach the required standard of care?

  Held:

  There was insufficient evidence that the accident had been foreseeable so the defendant was not liable. However, the court established that the relevant factor is age when determining the standard of care required for child defendants.

  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-yearold schoolgirl in the defendant's situation would have realised as much....

Very young children are rarely found to be liable but older children may be held to the standard of care required of a reasonable adult.

• Gorely v Codd [1967] 1 WLR 19

  Facts:

  The plaintiff was injured by an air rifle pellet. The defendant, a 16 year old boy, shot the plaintiff accidently when larking about.

  Issue:

  What was the required standard of care?

  Held:

  The defendant was found liable as he was expected to meet the standard of care required for a reasonable adult.