#17356 - Standard Of Care And Breach - GDL Tort Law

Proving Negligence:

• The burden of proof remains on the claimant, but sometimes merely need to show the facts of the case, Res ipsa loquitur – ‘the thing speaks for itself’

• E.g. 7 inch scissors left inside the patient (2004 Australian case)

Key is the idea of reasonableness

• Hall v Brooklands Auto Racing Club [1933] – owned car race track. Spectators admitted on payment to view in stands. Two cars collided. One was flung into the air over barrier into the stand killing two and injuring others.

  • Held club was under no duty to guard against risks that were not reasonably foreseeable, or which were innate to the activity of which C was a spectator.

  • per Greer LJ: Sometimes described as "the man in the street," or "the man in the Clapham omnibus," or, as I recently read in an American author, “the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves”’

Two standards

• Basic (reeasonable man) standard applies in cases of something ordinarily undertaken by ordinary men.

• Professional (Bolam) standard applies in cases where the action is specialised and performed by professionals.

The basic standard is fixed for everyone, irrespective of age or relative experience

• Nettleship v Weston (1971) – learner driver held to same standard as an experienced driver.

• Phillips v Whiteley (1938) – a jeweller does not need to reach the standard of a surgeon when piercing ears.

• Wells v Cooper (1958) – Fixed handle to his rear door. Visiting tradesman injured himself. A man doing DIY does not need to reach the standard of a master carpenter.

Some judicial discretion can/dopes occur as to this standard

• Miller v Jackson (1977) – Some judicial discretion. Claimants bought a house near a cricket ground – they found after they bought the house cricket balls were being hit into the garden, they thought this was unsafe.

  • They argued it was unreasonable for the cricket club to continue playing there due to the risk of injury of persons or property.

  • Denning LJ (dissenting on negligence): “In summertime village cricket is the delight of everyone…”

  • Damages awarded, injunction rejected.

A lower standard does apply to children

• Though there is no legal definition of a child per se.

• Mullin v Richards [1998] – Two 15-year-old school girls were fighting with plastic rulers. A ruler snapped and a splinter went into one of the girls’ eyes causing blindness. Tried to sue other girl.

  • No breach as the girl was only expected to meet the standard of a reasonable 15-year-old school girl not that of a reasonable man.

• Orchard v Lee [2009] – School dinner lady sustained injuries when a 13-year-old boy ran backwards into her while playing a game of tag. She sued the boy in the tort of negligence

  • The Court of Appeal held that the boy had not breached his duty of care, and so was not liable.

A different standard may apply to public authorities

• Knight v Home Office [1990] – Prison authority sued for failing to prevent a prisoner committing suicide in prison hospital. Standard of care below that of NHS

  • Court held with public authorities resources are limited, and a matter of parliament to dictate allocation of resources.

The standard may also be adjusted to account for physical and mental impairments

• Roberts v Ramsbottom (1980) – D suffered a stroke while driving. Driver was aware he felt odd but continued to drive and as a result hit several cars and then a pedestrian.

  • Held liable in negligence as he retained some, though impaired, control of his actions. A reasonable driver would have stopped the car.

• Mansfield v Weetabix (1997) – D suffered from hypoglycaemia and crashed into Claimants shop. The driver had not realised that his ability to drive had been impaired.

  • No breach as the standard was that of a reasonably competent driver who did not realise his ability had been impaired.

• Dunnage v Randall (2015) – Insanity is not a defence to tort

  • D was mental ill and set fire to flat with himself and claimant inside.

  • The standard of care was adjusted, but D could not escape liability entirely on grounds of disability if he breaches the expected standarsd.

The Foreseeability of the Harm

• Courts put themselves in the position of the defendant at eh time of the breach to see if there was a reasonable risk of harm.

• Roe v Minister of Health [1954] – Alleged negligence by hospitals. Two claimants had been given an contaminated anaesthetic for minor operations leading to permanent paralysis.

  • Anaesthetic had been stored in glass ampoules with micro-cracks in them leading to contamination. At the time it was not known that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.

  • Held that hospital could not have foreseen harm and had behaved reasonably.

  • Denning LJ. "We must not look at the 1947 incident with 1954 spectacles."

Magnitude of the Potential Harm

• If reasonably foreseeable there is a large risk, then running the risk is objectively liable.

• Two aspects

  • Reasonably foreseeable risk of harm

  • Reasonably foreseeable risk of degree of harm

Risk of Harm per se

• Bolton v Stone [1951] – Stone was injured when cricket ball hit her outside home.

  • She brought an action against the cricket club in nuisance and negligence. A witness who lived in the same road as the claimant but close to pitch said that five or six times during the last 30 years he had known balls hit his house or come into the yard. Agreed it was an exceptional shot.

  • No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances.

• Compare: Miller v Jackson [1977] – Eight balls a year were being hit in the vicinity of the claimant’s house.

  • Damages awarded.

Risk of Serious Harm

• Paris v Stepney BC [1951] – The claimant only had sight in one eye due to in injury sustained in the war. Metal splinter hit his other eye blinding him entirely.

  • Employer did not provide safety goggles to any of the workers.

  • Held: The employer should have provided goggles to the claimant because the seriousness of harm to him would have been greater than that experienced by workers with sight in both eyes.

  • The duty is owed to the particular claimant not to a class of persons of reasonable workers.

• Harris v Perry [2008] – Claimant (Child) injured on bouncy castle. Parents had briefly turned their back. Host parents appealed damages award.

  • CA held it was reasonably foreseeable that there could be an injury, but it wasn’t reasonably foreseeable that there was likely to be a serious injury if there wasn’t supervision.

  • Court held it was impractical for parents to hold constant supervision.

• The Wagon Mound (No 2) [1967] – D’s ship negligently released oil into the sea near a wharf close to Sydney Harbour.

  • An unfortunate chain of events led to the oil becoming mixed with cotton debris, which was subsequently ignited by the sparks coming off some nearby welding works this caused a large and destructive fire

  • Privy Council held that the defendant was in breach, as despite the likelihood of the oil spilling had been low, the defendant had been aware that were such an event to happen, the harm that it could cause was very significant.

Practicality of Precautions Taken

• Claimant can argue there are easy precautions that could be taken that weren’t: Less the cost the more likely a breach of duty

• Latimer v AEC [1953] – The claimant worked in the defendant's factory and slipped up on the factory floor. It had become wet due to flooding. D had mopped, put up warnings and put down sawdust.

  • The only way to completely prevent accidents would be to cease operations entirely.

  • Held this latter option was prohibitively expensive. The defendant only had to take reasonable precautions to minimise the risk which they had done.

• The Wagon Mound (No 2) [1967] – Supra

  • The risk could have been easily mitigated at minimal cost to the defendant.

Potential Utility of the Defendant’s Conduct

• Watt v Hertfordshire CC [1954] 1 WLR 835 – A woman had been involved in a traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station. Usual vehicle for the lorry jack was unavailable so C ordered to hold the heavy jack on back of lorry. It fell on C’s leg.

  • Held There was no breach of duty. The emergency of the situation and utility of the defendant's conduct in saving a life outweighed the need to take precautions.

• Compare: Ward v London CC [1938]

  • Fire engine jumped a red light - risk of injury too high to have been run, even though defendants were providing emergency services

• Compensation Act 2006, s 1

  • Passed on the basis that if members of the public heard about it they would be reassured. Did not change common law, just codify it in a statute.

  • In determining if particular steps should have been taken, court should have regard to whether those steps would

    • a) prevent a desirable activity from being undertaken

    • b) discourage persons from undertaking functions in connection with a desirable activity.

  • Scout Association v Barnes [2010] – The claimant was a thirteen-year-old boy scout. His scout troupe organised a game wherein the scouts would run about in a hall in the dark, racing to take a block in the middle. C was injured.

    • The majority of the Court accepted that the Association’s activities were of great social value, and that their activities will often and properly involve an element of risk to achieve this value.

    • However, the level of...