#4663 - Duty Standard And Breach - GDL Tort Law

The Standard of Care

General Rule: The reasonable man

Alderson B in Blyth v Birmingham Waterworks: ‘reasonable man, guided open those circumstances which ordinarily regulate the conduct of human affairs’

Vaughan v Menlove: defendant built a haystack on land adjoining the claimant’s property: poor ventilation so it set alight and caused damage to the claimant’s land – defendant had been warned about possibility of this happening but had ignored it – he was found liable – a reasonable person would not have taken the risk

Who is the reasonable man?

Greer LJ in Hall v Brooklands Auto Racing: ‘the man in the Clapham Omnibus … the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves’

• Objective standard employed as a tool by the courts

No allowance for lack of experience:

Nettleship v Weston: learned driver judged by the standard of the ordinarily competent driver – no allowance for lack of driving experience

• Why? Denning - practical reasons: - Insurance; would have different standards according to degree of competence – inexperience would be used as an excuse

• Standard of Care: not absolute – a person doesn’t have to do everything possible to prevent harm

  • Etheridge v East Sussex County Council : C (a school teacher) – injured when a pupil hit her with a basketball , her claim vs. the school failed as the school had procedures and systems in place to prevent such accidents. School was not required to give absolute guarantee for the safety of everyone on the school’s premises

But: whilst in essence the standard is OBJECTIVE – there are often strong SUBJECTIVE influences in fixing the level of that standard – court must consider what could reasonably be expected of the hypothetical man performing the act in the circumstances

• Glasgow Corporation v Muir: application of a subjective element

• Leads to the court imposing a higher or different standard of care on the defendant when considered appropriate

The Professional standard

Based on what reasonable professional in that field would have done – rather than reasonable man on the Clapham Omnibus

• Bolam v Friern Hospital Management Committee: the liability of a doctor administering electro-convulsive therapy was considered ‘it is sufficient if he exercises the ordinary skill or an ordinary competent man exercising that particular art’

• Sidway v Governors of Royal Bethlem Hospital: regards to the warning of a risk in medical treatment (10%)

• Professional negligence not a separate tort – but a particular area where ordinary common law negligence operates – difference is the standard of duty adopted and therefore, how a breach is determined

The Lower Standard

• The courts are reluctant to accept a lower standard than that of the ordinary man - but for children it will be for a reasonable child of the defendant’s age

  • McHale v Watson: took into account the age but none of the other characteristics of the child (e.g. abnormally slow-witted)

  • Mullin v Richards: both defendant and claimant were 15 – ‘play fight’ - piece of plastic broke off – held that two schoolgirls could not reasonably have foreseen any significant risk of the likelihood of injury

• Lower standard not applied to adults regardless of inexperience due to need for easily ascertainable standard: Nettleship v Weston – Lord Denning : DOC ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose act is in question’

• Wilsher v Essex Area Health Authority: junior doctor judged by the standard of the reasonable doctor in that field – standard is tailored to the activity – not to the level of experience

Problem cases: Sometimes unclear what standard to apply

• CA in Wilsher: test should be based ‘on the act and not the actor’ – i.e. standard of care will be determined by the act being performed – if ordinarily performed then test will be that of the ordinary man – if not then the Bolam test will be applied

• Phillips v William Whitely: jeweller who undertook ear piercing was required to possess the skill of the reasonable jeweller, not that of a surgeon

• Wells v Cooper: DIY fanatic not required to reach standard of the experienced carpenter

• Gates v McKenna: defendant (stage-hypnotist) expected to take precautions that a ‘reasonable exponent of stage hypnotism’ would adopt to prevent injury – similarly Watson v Gray with regards to professional footballers

• Professionals who claim to possess greater skill than that normally possessed by member of their profession are still judged by standard of the ordinary reasonable member of that profession - but could be liable for breach of contract if they fail to deliver level of skill promised (Wimpey Construction UK Ltd. v Poole)

• If defendant takes on a task that he should know is beyond capabilities – could in itself be negligence (Greaves & Co. v Baynham Meikle & Partners)

Illness/Disability

• Roberts v Ramsbottom: elderly defendant suffered stroke whilst driving - court held that he was negligent according to the standard of the reasonable competent driver – should have stopped the car as soon as he realised that his driving was affected

• Mansfield v Weetabix Ltd: lorry driver crashed into claimant’s shop after suffering hypoglycaemic state – no evidence that he know his ability to drive was impaired – held that he should be judged in comparison to reasonably competent driver who was unaware that he was suffering from such a condition – therefore not liable

Sport

• Provided defendant takes reasonable care to abide by rules of the game – will NOT be liable

• Condon v Basi and Watson v Gray: both cases involving footballers

• Vowles v Evans – amateur rugby referee

• Even where the game played amounts to horseplay rather than organised sport – there may well be no breach of duty provided that the conduct doesn’t amount to recklessness or a very high degree of carelessness (Blake v Galloway)

Establishing breach of the duty

Usual or common practice

• If a defendant can show he has acted in accordance with a practice usually followed by others in that field, he may escape liability:Maynard v West Midlands Regional HA - doctor who acted in accordance with a common practice adopted by a reasonable body of medical practitioners was held not to have been negligent

• But it may be ruled that the common practice is itself negligent – Re Herald of Free Enterprise where the common practice of sailing a RO-RO ferry with the bow doors open was declared negligent

• Also Thompson v Smith Ship Repairers Ltd – apathy of the shipping industry towards hearing loss – failed to provide sufficient ear protection for workers

Magnitude of the risk

• The more likely the injury, the more likely there is a breach although the defendant doesn’t have to guard against every minor risk of injury

• Bolton v Stone: C injured by cricket ball hit out of the cricket ground – evidence that it had happened only 6 times in previous 30 years and ground had high fence around it – slight chance so reasonable man wouldn’t have guarded vs. it

• Pearson v Lightning: reasonable man wouldn’t have taken difficult golf shot as it was foreseeable that the claimant might be injured if it went wrong – risk of injury not slight so liable

The ‘state of the art’: D cannot be expected to take steps to prevent to take risks that were unknown at the time the tort was committed

• Roe v Ministry of Health – anaesthetist found not to be liable in respect of injuries caused by contaminated anaesthetic when at the time the possibility of injury was not appreciated by the medical profession

The seriousness of the injury

• If any injury that may occur would be serious, greater care will be needed than if the risk of injury was slight – in Paris v Stepney Borough Council: the claimant had only one good eye – a fact known to his employers – no protective goggles were given to him – he became blind when a piece of metal went into his good eye – HL held that the defendant was liable

• Watson v British Boxing Board of Control: CA: defendant breached duty towards boxer who had suffered permanent brain damage – should have had ringside resuscitation equipment available and doctors who knew how to use it – the threat of ‘serious brain damage’ weighed with the court

• If the defendant is aware that the claimant is less able to take care of himself

  • Paris v Stepney Borough Council: defendants knew that the claimant only had one eye

  • Yachuk v Oliver Blais Co Ltd: defendants sold petrol to a 9 year old child – should have known he wouldn’t know the dangers of the fuel exploding

The practicality of precautions

• Necessary to ascertain how easily the risk could have been avoided and to balance the cost/practicality of these vs. the severity of the risk

• Latimer v AEC Ltd: defendant’s factory floor became slippery following a flood and the claimant slipped on it – defendant had taken some precautions – but the only way to guarantee safety would have been to cease operating the factory – or to employ many people to mop up the spills – neither of these justified given the small risk of injury to the claimant

• Bottomley v Secretary and Members of Todmorden Cricket Club: defendant cricket club liable to claimant who had been injured by fireworks display - had failed to take adequate precautions to ensure the independent contractor had safety plans and public liability insurance

  • Distinguished from Payling v Naylor: claimant suffered serious head injuries after been ejected from the defendant’s nightclub by a doorman employed by a security firm – here defendant was not...