AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the usual means of measuring the standard of care
■ Understand the different measure applicable to professionals, particularly doctors
■ Understand the factors used in determining whether a defendant has fallen below the standard of care appropriate to the duty owed
■ Critically analyse the concepts of standard of care and breach of duty of care
■ Identify the appropriate standard of care in factual situations
■ Apply the factors for determining breach to factual situations in order to establish if a breach has occurred
We have already seen how negligence occurs where a person owing a duty of care to another person breaches that duty and causes damage which is not too remote a consequence of the breach of duty.
Breach of duty, the second element of negligence, actually refers to the standard of care that is appropriate to the duty owed. A breach of duty simply occurs when the party owing the particular duty falls below the standard of behaviour that is required by the particular duty in question.
The judge in the case will determine the standard of care and whether or not the defendant’s behaviour has fallen below that standard according to established tests. While the standard of care in any situation is a question of law, whether or not the defendant has fallen below the standard is a question of fact that will be determined by reference to all of the circumstances of the case.
The standard of care required is generally measured according to an objective method of testing. In this way, while what is the appropriate standard is obviously determined factually according to the circumstances of the case, it is nevertheless the standard that would have been adopted by a ‘reasonable man’ confronted by the same circumstances that will be taken as the measure by which the defendant’s actions will be judged.
The objective standard measured according to the standards of the ‘reasonable man’ was first identified in:
Blyth v Proprietors of the Birmingham Waterworks  11 Exch 781
A water main was laid in which there was a ‘fire plug’. This was a wooden plug in the main that would allow water to flow through a cast iron tube up to the street when necessary. A severe frost loosened the plug and water flooded the claimant’s house, the cast iron tube being blocked with ice. The frost was beyond normal expectation. There was nothing that the defendants could have reasonably done to prevent the damage and there was no liability.
In explaining how the standard of care is measured and identifying the significance of the ‘reasonable man’ in objectively measuring the standard Alderson B made the fol-lowing observation:
‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do.’
The test on the face of it seems simple enough. The question is, who is the reasonable man by whose standards we are supposed to judge our behaviour?
Judges have over time attempted to defne the character of the reasonable man in order that the objective standard can be more closely understood.
In Hall v Brooklands Auto-Racing Club  1 KB 205 Greer LJ defined the reasonable man as follows:
‘The person concerned is sometimes described as “the man on the street”, or as the “man on 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 lawnmower in his shirt sleeves”.’
The use of the ‘reasonable man’ is an objective measure but it is also a means of placing that test in the context of human characteristics. Precise characteristics that can be associated with the reasonable man have also been considered in judgments.
Glasgow Corporation v Muir  AC 448
Here small children were scalded when a tea urn was dropped. The urn was being carried through a narrow passage where the children were buying ice creams when the corporation allowed a church picnic to come inside on a rainy day. Liability was assessed according to the ‘reasonable man’ test.
In establishing on what to base an objective standard Lord Macmillan concluded that:
‘The standard of foresight of the reasonable man is an impersonal test. It eliminates the per-sonal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset by lions; others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free from both over-apprehension and from over-confidence.’
student mentor tip
‘Don’t forget to remember all the elements to show if there was a duty of care and if it was breached.’ Pelena, University of Surrey
In fact the breach of duty is another way of saying that the defendant is at fault and is therefore liable for the damage caused. The issue of whether liability should always be based on fault or whether there should be a no-fault liability system is a controversial question and one that we will return to.
Certainly in practice who or what is the reasonable man and what constitutes an objective standard, are concepts determined by the judges in a case. Judges in reaching a decision will also base their judgment on either policy or expediency as the need arises.
Policy considerations that can influence a judge include:
■ Who can best stand the loss — clearly a claimant needs to claim from a party who can afford to pay. The key rule in deciding whether or not to bring a case is ‘Never sue a man of straw’ (a person of no means).
■ Whether or not the defendant is insured — in most circumstances in the modern day it will be an insurance company rather than the actual defendant who will pay the compensation. This would be the case for instance of motorists, employers, professional bodies, manufacturers, etc.
■ The extent to which the decision will prevent similar behaviour in the future — the tort system is mainly about compensating for loss and damage suffered but it should also have a deterrent element.
■ Whether or not the decision would ‘open the foodgates’ to further cases.
■ Whether or not particular types of actions should be discouraged — for instance against the police or administrators of the law.
■ Whether or not there are alternative means of gaining a remedy.
Through the cases judges have developed a number of rules concerning those things that should be taken into account in determining the standard by which the defendant’s behaviour should be measured.
There is no obligation on the defendant to guard against risks other than those that are within his/her reasonable contemplation. It would be unfair to make a defendant responsible for the unforeseeable.
Roe v Minister of Health  2 QB 66
A patient became paralysed after being injected with nupercaine, a spinal anaesthetic. This had been stored inside glass ampoules themselves stored in a sterilising fluid, phenol. Evidence at the trial showed that the phenol solution had entered the anaesthetic through hairline cracks in the ampoules, contaminating it and causing the paralysis. There was no liability because such an event had not previously occurred and was unforeseeable as a result.
Nevertheless, if the defendant is aware of the possibility of harm he must guard against it, and it will be a breach of the duty of care to fail to.
Walker v Northumberland County Council  1 All ER 737
Here a senior social worker had suffered a nervous breakdown. His employers knew that he might suffer another breakdown when he returned to work if the pressures of his work were too severe and stressful. They took insufficient steps to reduce the pressures of his workload and, when he was again made ill, they were in breach of their duty to take reasonable steps to avoid psychiatric injury knowing of his state of health.
Wherever we owe a duty to another person we must all guard against the risk of doing harm. This is only reasonable. The degree of caution that we must exercise will obviously be dictated by the likelihood of the risk. The magnitude of the risk then can be balanced against the extremes that must be taken in order to avoid it.
Bolton v Stone  AC 850 HL
Miss Stone was standing outside a cricket ground and was hit by a cricket ball that had been hit out of the ground. She was actually 100 yards from where the batsman had struck the ball. The batsman was 78 yards from a 17 foot high fence over which the ball had travelled. This was quite incredible and it was shown that balls had only been struck out of the ground six times in 28 years. There was no negligence. The cricket ground had done everything reasonably possible to avoid risks of people being hit.
Lord Radcliffe identified the connection with the basic ‘reasonable man’ test:
‘the fact remains that, unless there has been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty’.
Haley v London Electricity Board  AC 778
Here a hole was being dug along a pavement and a hammer was left propped up on the pave-ment to warn passers by of the presence of the hole. A blind man was passing and his stick failed to touch the hammer and he tripped and fell which left him deaf. It was held that there was a sufficiently large proportion of blind people in the community for precautions to be taken that would protect them also and the cost would be very low. The defendants were liable for negligence.
Statutory health and safety law means that formal risk assessment is now a common requirement in all industries and this creates an obligation in relation to specific incidents as well as in general terms.
Davis v Stena Line  EWHC 420 (QB)
thin skull rule
Also known as the ‘eggshell skull rule’ – means that the defendant has to take extra care of a claimant who is susceptible to a certain type of harm
A passenger on a ferry fell overboard. The likelihood of such accidents was high and well known to the company which had failed to provide adequate training for the crew in such events. The captain of the ferry attempted a risky rescue, involving throwing the man a rope and pulling him up the high sided vessel and through a door. Weather conditions were very bad and the man died in the swell created by the ferry. A passing ship which had previously spotted the man alive in the water had been in a position to launch its fast rescue boat. The court held that (1) the rescue attempted by the ferry captain would have had very little chance of success and it was negligent of the captain not to consider the better alternative option and (2) negligent on the part of the company not to have provided the captain with the training that would have enabled him to make that decision.
The court will not only be concerned with the likelihood that harm will occur but the risk that the harm will be great if it does occur. In this sense the defendant must ‘take the claimant how he finds him’, the so- called ‘thin skull’ rule.
Paris v Stepney Borough Council  AC 367
The claimant here who was a mechanic was already blind in one eye. He was then blinded in the other eye in an accident at work when his employers had failed to supply him with safety goggles that they were actually legally required to do. They were then liable to the defendant to the extent of causing his total blindness rather than merely for the loss of the sight in the one eye. The claimant’s partial sight meant that the duty towards him was necessarily greater than normal.
The same principle can apply even though the foreseeable harm is psychiatric rather than physical.
Walker v Northumberland County Council  1 All ER 737
An area social services officer had particularly onerous and stressful responsibilities and suffered a nervous breakdown. He returned to work after three months on the understanding that there would be a lighter workload and less pressure. He was nevertheless expected to clear up the backlog and suffered a further breakdown leading to eventual dismissal on ill health. The employers were held to have breached their duty to protect his psychiatric well-being and health.
It is also possible for the characteristic in question to be something other than the claimant’s health or physical characteristics.
Mattocks v Mann  RTR 13 CA
Here the claimant was able to recover the cost of hiring a replacement vehicle used during a delay caused by the insurers’ negligent failure to pay for repairs to her vehicle. She was unable to pay for the repair costs herself and it was foreseeable that she would hope that the insurers would meet those costs.
A defendant can sometimes escape liability in a case because it is possible to show that there was a justification for taking the risk in question. This might be so for instance where the defendant acts to avoid a potentially worse event.
Watt v Hertfordshire County Council  1 WLR 835
A woman was trapped in a car crash. The fire station summoned to the incident had a special heavy jack for using in such circumstances. It would normally be taken to the scene properly secured in its own vehicle, but the vehicle was elsewhere. The jack was taken unsecured in another vehicle because of the emergency and when the driver was forced to brake sharply the jack moved injuring a fireman. There was no negligence because the situation was an emergency and justified the risk.
However, this will not mean that the taking of any risk at all can be justified. Only the precise circumstances can justify the taking of the risk.
Griffin v Mersey Regional Ambulance  PIQR P34
There was liability when an ambulance crossing a light on red crashed. However, the other motorist was held to be 60 per cent contributorily negligent.
The usefulness of a defendant’s behaviour, social utility, has also been considered in an entirely different context. In The Scout Association v Barnes  EWCA Civ 1476 it was raised when a 13-year-old scout was injured while playing a game in the scout hut called ‘objects in the dark’. It was held that since playing the game was only to increase its excite-ment rather than for any educational or social value the added risk was not justified.
The reasonable man only has to do what is reasonable in order to avoid risks of harm. This means that there is no obligation to go to extraordinary lengths, particularly if the risk is slight.
Latimer v AEC Ltd  AC 643
A factory became flooded after a torrential rainstorm. The water mixed with oil and grease on the floor making the surface very slippery and dangerous. When the water subsided sawdust was spread over the floors in order to make them secure. There was not enough to cover the whole floor and Latimer slipped on an uncovered patch and was injured. The House of Lords held that everything reasonable had been done in the circumstances and, balancing out the possible risks, it was unreasonable to expect the factory to be closed. It was held that there was no negligence.
The context in which the damage occurs may very often dictate that the defendant has little chance to protect against it. In this way there was no liability when an inmate in a young offenders’ institution was injured in a knife attack by another inmate: Thompson v Home Office  EWCA Civ 331.
Generally though where the defendant has sufficient control of circumstances to be able to avoid the harm, he would be obliged to act. This is particularly so where the welfare of the claimant is entrusted to the defendant.
Bradford-Smart v West Sussex County Council, The Times, 29 January 2002
The Court of Appeal accepted that a school would be in breach of its duty of care to its pupils if it failed to take steps that were within its power to put a stop to bullying. The Court accepted that this could apply even to incidents that arose off the school premises, although in general it was accepted that only rare exceptions would give rise to a breach of duty, and that the present case was not such an occasion.
A negligent activity cannot be excused merely because it is common practice. Nevertheless, the fact that something is generally practised may be strong evidence that it is not negligent, otherwise it would not normally be carried out.
This of course is not an absolute principle and it will not necessarily be negligent merely to fail to follow common practice.
Brown v Rolls-Royce Ltd  1 WLR 210
An employee contracted dermatitis. The employers provided adequate washing facilities but they did not provide a barrier cream that was commonly used in the industry. They were not negligent in not providing the barrier cream because it could not be shown in the case that using the cream was guaranteed to prevent the condition.
The standard of care is measured objectively but the courts have often looked at whether the standard may differ according to the type of person who owes the duty.
Traditionally there was little case law involving the standard of care owed by children. Case law from other jurisdictions indicated that a child was not expected to have the same skill or understanding as an adult and therefore the standard of care owed was that appropriate to the age of the child in question.
McHale v Watson  115 CLR 199
A 12-year-old boy injured a girl in the eye when he threw a steel rod at a post. There was held to be no negligence.
This seems to be more of a subjective than an objective test but the English courts have tended to follow it.
Mullin v Richards  1 All ER 920
Here two 15-year-old schoolgirls were ‘fencing’ with plastic rulers. One ruler broke and one of the girls was injured in the eye. The Court of Appeal held that since such games were commonplace and would normally not lead to injury then the injury was unforeseeable to girls of that age and there was no negligence.
In Orchard v Lee  EWCA Civ 295 it was held that the mere fact that a risk of harm was insufficient on its own to make a 13-year-old boy liable for injuries he caused to a lunch break supervisor when he was running backwards in a school playground. The reasoning was that the school did not prohibit running in the playground so that the defendant was merely doing what any boy of the same age would do in a designated play area.
However, the judges have been willing on occasions to make awards of contributory negligence against child claimants.
Armstrong v Cottrell  PIQR P109 CA
The judge in this case was prepared to reduce damages for a 12-year- old by a third because he felt that children of that age should know the Highway Code.
And this can even be to a high level of reduction with quite young children.
Morales v Eccleston  RTR 151
Damages were reduced by 75 per cent when an 11-year-old ran into the road to recover his football.
One further aspect of the standard expected of children is that the law expects that young children should be supervised. This can be seen as a precise aspect of the duty owed to young children in the case of occupiers’ liability (see Phipps v Rochester Corporation  1 QB 450 (s8.2.3)).
Jenny v North Lincolnshire CC  LGR 269
The Court of Appeal held that the local authority was liable for the injuries to a young school pupil who was injured as the result of being on a major road during school hours.
Where a person is sick or suffering from a disability it is likely that the standard of care owed is what would be appropriate in the case of the reasonable man suffering the same illness or disability. It is inevitable that the same degree of care will not be expected as would for a person in normal health.
A person suffering from a disability of the mind may be liable for the torts he commits if sufficiently aware of the quality of the act.
Morriss v Marsden  1 All ER 925
Here the defendant was a schizophrenic who attacked a claimant and was thus accused of battery. It was held that persons suffering from a mental illness could be liable for intentional torts even if unaware that their actions were wrong if they knew the quality of the act they committed.
In general the same standard of care is expected of all motorists regardless of their age or experience, and even of learner drivers.
Nettleship v Weston  2 QB 691
A learner driver on her third lesson crashed into a lamp post injuring the person teaching her to drive. The Court of Appeal found that she was liable despite being a learner driver.
In identifying that the standard of care of all motorists is the same and that there is no reduction in the standard because of inexperience Lord Denning commented as follows:
‘[The law] requires of him the same standard of care as of any other driver. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity.’
Lord Denning identified in the case that this is probably to do with the fact that motorists are obliged to carry compulsory insurance and therefore the degree of risk associated with the particular class of driver can be reflected in the insurance premium they are expected to pay.
The principle might even extend to a motorist who becomes physically incapable of controlling the vehicle because of a physical impairment.
Roberts v Ramsbottom  1 All ER 7
A driver crashed into a stationary vehicle after suffering a cerebral haemorrhage (a stroke). He continued to drive after the seizure and the court felt that he was negligent for doing so. The court accepted that a defendant would have a defence if his actions were entirely beyond his control, but that here the driver should have stopped driving immediately.
However, a motorist will not be liable if he is unaware of the disabling condition that causes the loss of control.
Mansfeld v Weetabix Ltd  PIQR P526
Here it was held that the driver could not have reasonably known of the infirmity that led to his loss of control and the subsequent accident so there was no fault. The previous case was said to be wrongly decided on this point but was still correct in that the driver continued to drive when he should have known that he was unfit to do so.
The standard of care appropriate to participants in sport is the ordinary standard of reasonable care. The level of care required will depend on the circumstances of the case including whether the player is a professional or an amateur.
Condon v Basi  2 All ER 453
Here the ordinary standard of reasonable care was applied when a footballer was injured in a dangerous and unacceptable tackle during an amateur football match. Sir John Donaldson MR suggested in the case that a much higher degree of care would be expected of a professional footballer.
Professional players are assumed to be more knowledgeable of the potential risks and consequences of injury and are thus more likely to be found in breach of their duty of care to fellow professionals.
McCord v Swansea City AFC Ltd and another, The Times, 11 february 1997
Here a tackle by a player of the defendant football club ended the claimant’s career. While the judge was not prepared to consider the tackle as reckless, it was a serious mistake of judgement that amounted to a breach of his duty of care to fellow players.
Pitcher v Huddersfield Town Football Club Ltd  All ER (D) 223
The claimant, a professional football player, suffered a knee injury ending his career after a rash tackle. The judge did not accept that the defendant player had fallen below an appropriate standard. He had mistimed his tackle but such errors of judgement were commonplace in the sport.