Liability in negligence

1
Liability in negligence

• Breach of duty

2
Lesson Objectives

• I will be able to describe the reasonable man
  test
• I will be able to list the factors that affect
  the standard of care of the reasonable man
• I will be able to state and explain relevant
  examples for each of the above factors

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The nature of the breach the reasonable man

• Once it has been established that a duty of care
  exists, the claimant must satisfy the court that
  the defendant broke that duty of care by failing
  to reach the standard of care required
• The standard of care comes from the definition
  from Baron Alderson in Blyth v Birmingham
  Waterworks Co. (1856)

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• The reasonable man is the ordinary person
  performing the particular task he is expected to
  perform it reasonably competently (i.e. a
  reasonably competent driver, builder etc)
• This is an objective standard the peculiarities
  of the person performing the task are irrelevant

5
Factors affecting the standard of care of the
reasonable man

• When the court looks at whether a duty of care
  has been breached, it bases the standard on the
  reasonable man performing the task in the
  circumstances
• There are, therefore, a number of factors that
  can be considered to raise or lower the standard
• This is logical because a reasonable person will
  rightly take greater risks in an emergency, and
  take more care when the risk of harm is greater

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• These differences can be put into various
  categories. Commonly used questions to define the
  categories include
• Are there any special characteristics of the
  defendant?
• Are there any special characteristics of the
  claimant?
• What is the size of the risk?
• Have all practical precautions been taken?
• What are the benefits of taking the risk?

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Are there any special characteristics of the
defendant?

• The defendant is expected to be a reasonably
  competent person performing the task. This is
  straightforward when dealing with everyday people
  doing everyday tasks
• Wells v Cooper (1954) the standard of care
  required is one of the reasonably competent
  person doing the job in question. Here a man
  doing DIY was expected to reach the standard of a
  reasonably competent professional doing the job

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• This can have some surprising, but logical
  results
• Nettleship v Weston (1971) the standard of care
  expected of a learner driver is the same as that
  of any driver. This is logical from the point of
  view of those injured and because there is
  compulsory insurance.
• The position is much the same when dealing with a
  professional. When you go to hospital for an
  operation, you expect the same standard from your
  surgeon whether it is his first operation ever or
  not
• This is no different to the learner driver. The
  test is whether he is operating to the standard
  expected under a known and accepted procedure.
  This can be seen from the case Bolam v Friern
  Barnet Hospital Management Committee (1957)

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• The principle for professionals is established by
  asking two questions
• Does the conduct of the defendant fall below the
  standard of the ordinary competent professional?
• Is there a substantial body of opinion within the
  profession that would support the course taken by
  the defendant?
• (It should be noted that in Bolitho v City and
  Hackney Health Authority (1997) it is open to the
  court to find the practice of the entire
  profession wrong. In such circumstances, the duty
  of care would be broken even if the normal
  practice was being followed)
• If the answer to the first question is no and
  to the second question is yes, then the correct
  standard has been reached and the defendant has
  not broken his duty of care

10

• It should be noted that where a reasonable man
  cannot know that a standard procedure is in fact
  dangerous, he will not break the duty of care
• This is because the reasonable man is not
  expected to know and protect against risks of
  harm that are not yet known scientifically
• Once the risk is known, there can be a breach of
  duty Roe v Minister of Health (1954) the
  reasonable man cannot take precautions against
  unknown risks. He will only break his duty by
  failing to take precautions when the risk becomes
  known

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Are there any special characteristics of the
claimant?

• The reasonable man takes more care where the
  situation demands it. This factor relates to
  risks known to the defendant as a result of
  peculiarities to the claimant
• Paris v Stepney Borough Council (1951) where a
  defendant knows of an increased risk to the
  claimant, more care must be taken. The council
  knew he only had one good eye so needed to do
  more than usual to protect the other
• Walker v Northumberland County Council (1995)
  where an employee has already had time off work
  with an illness or injury, the employer must then
  take more care to avoid a repeat or more serious
  illness. In this case it was stress-related

12

• Another example of this is that a higher standard
  of care is expected by organisers and sports
  coaches to disabled athletes because of their
  special needs Morrell v Owen (1983)

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What is the size of the risk?

• The principle is that the greater the risk, the
  more care need be taken. To some extent this is
  an extension of the ideas behind the previous
  factors
• The reasonable man takes more precautions where
  the risk is greater, but does not take
  precautions against highly unlikely events
• The classic case on this is Bolton v Stone (1951)
  the reasonable man takes precautions against
  reasonable risks, not fantastic possibilities.
  The likelihood of a cricket ball clearing the
  protective fence at the ground and injuring a
  passer-by was not a risk the reasonable man would
  protect against
• Haley v London Electricity Board (1964) a
  reasonable risk to protect against is one that is
  statistically likely to occur. In this case, a
  blind pedestrian was not adequately warned of a
  trench across the pavement

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Have all practical precautions been taken?

• It follows from the previous factor that a
  defendant will have acted reasonably if he has
  taken reasonable precautions
• The idea behind this factor is that the
  reasonable man will do all he reasonably can to
  prevent harm coming to others. In situations that
  are unexpected, this may not always prevent an
  accident, but the key is the reasonableness of
  the action taken
• Latimer v AEC (1952) one factor in deciding
  whether the defendant has acted as a reasonable
  man is taking all practical precautions. After a
  flood, this was doing the best to mop up and
  warning the employees in the factory

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What are the benefitsof taking the risk?

• This factor is sometimes called public utility.
  The idea is that there is a lower standard of
  care when reacting to an emergency
• This is consistent with the idea of fair, just
  and reasonable in the third part of the Caparo
  test
• Watt v Hertfordshire County Council (1954) the
  benefits of saving a womans life outweighed the
  risk of injury to a firefighter when using the
  best, but still unsuitable vehicle in an
  emergency

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• The approach of the courts is very realistic when
  an emergency arises as the courts want to
  encourage rescuers on the one hand, but also want
  to make sure employers are not put off
  encouraging employees to effect a rescue by the
  threat of being sued in negligence because they
  had not taken all reasonable precautions
• http//www.dailymail.co.uk/news/article-2104358/Si
  mon-Burgess-drowned-firemen-refused-wade-3ft-deep-
  lake-health-safety-rules.html
• Day v High Performance Sports (2003) the
  standard of care can be lower when making a
  rescue, in this case on a climbing wall
• Breach of duty is concerned with the question of
  whether the defendant has reached the standard of
  care of a reasonable man. There are a number of
  factors that are relevant to this duty which
  raise or lower the standard expected