Breach of Duty (1)
The basic standard of care in negligence is objectively assessed: it is that of the reasonable man
However, in some situations....
.......a more subjective standard will be appropriate
Judges apply balancing factors to determine whether or not the defendant has reached the standard of care in the circumstances
Was there a breach of duty?
Two questions to consider
How ought the defendant have behaved in the circumstances? The standard of care is a matter of law.
...and question 2
Did the defendant's behaviour fall below the desired standard? i.e. breach.
This depends on assessing what actually happened in the case and is described as a matter of fact.
The standard of care......
........in negligence is objective it is that of the 'reasonable man'.
Factors reasonable people take into account include
Assessment of risks
Utility of conduct
Expense of taking precautions
Blyth v Birmingham Waterworks Co (1856)
'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 reasonable man is not foolhardy, but nor is he excessively cautious. He is expected to learn from experience and is not excused by being slow-witted or having a poor memory. On the other hand, the law recognises that everyone makes mistakes
Glasgow Corp. v Muir 
Picnickers/rain/sheltered in tearoom - tea urn fell and 6 children scalded
HELD: The accident, while it could have been foreseen as a possibility, was not a reasonable probability to the extent that the manageress should have been expected to clear the hall of children in anticipation.
Lord Macmillan said......
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 both from over-apprehension and from over-confidence...'
.....demand a very high standard from the reasonable man?
Why did Lord Macmillan not require us to imagine 'lions around every corner?'
Knowledge? Roe v Ministry of Health 
Where the state of scientific and technical knowledge may be involved, the defendant' actions will be judged on the standard prevalent in the circumstances of the time.
Lord Denning: 'We must not look at the 1947 accident with 1954 spectacles.'
How might the approach in Roe......
........be applied in litigation relating to present injury to health caused by smoking in the past?
.....possessed by the defendant may be relevant
Paris v Stepney Borough Council
not common practice to supply safety goggles but the employer was aware that the claimant only had the use of one eye
Drivers: Nettleship v Weston (1971)
What might be the policy reasons behind this decision?
Should it matter in a case like this who the injured party is?
What about a pedestrian?
Is the law in Nettleship actually laying down a standard which is unachievable?
Exceptions to the objective standard
McHale v Watson: standard which is 'normal for a child of the relevant age'
Mullin v Richards: there was no breach of duty due to the fact that the girls would not have foreseen any real likelihood of injury
What should be the upper age...
.......at which the 'reasonable child' standard should apply?
What would be other problems with children as defendants?
What other types of defendants should be approached on a more subjective basis?
To what extent are we responsible .....
...for actions which are influenced by illness?
Roberts v Ramsbottom: 73 year old man with symptoms indicating a stroke
Mansfield v Weetabix Ltd: lorry driver did not know he was suffering from an illness
Breach of Duty (2)What about a defendant...
... who holds him/herself out as having a particular skill? Professional, medical, domestic
Phillips v William Whiteley:
'If a person want to ensure that the operation of piercing her ears is going to be carried out with that proportion of skill...the a fellow of the Royal College of Surgeons would use, she must go to a surgeon.'
Standard of care: doctors (see below)
this covers a wide range of competencies and specialisms (see Wilsher v Essex HA)
standard of care should be one appropriate to the post which the doctor holds
however a new registrar must achieve the same standard as a more experienced one
How does the court decide what a reasonable man, or woman, ...
....would have done in a particular situation?
This judgement always has a retrospective element.
(1) Cost of running the risk
Likelihood of injury
Bolton v Stone: an ordinarily careful man does not take precautions against every foreseeable risk
Severity of the injury
Paris v Stepney (previous lecture)
(2) Cost of avoiding the risk
Importance of the defendant's purpose
Watt v Hertfordshire CC - saving of a life
Practicability of taking precautions
Latimer v AEC - unreasonable to expect the
factory to close
The Wagon Mound
Lord Reid said a small risk may be neglected if there is a valid reason for doing so but noted that there was no justification at all for spilling the oil, if fact it was expensive and illegal. The cost of stopping the spillage ('practicability of taking precautions') was assumed to be negligible.
Standard of care: 'the reasonable man'...
....but note that the courts have developed a number of modifications to the general standard in the a number of situations involving:
Wooldridge v Sumner; Condon v Basi
Referee: Smoldon v Whitworth and Vowles v Evans
Watson v British Boxing Board
Note: this is approached not only as a question of standard of care but also in terms of the defence of volenti (lecture 10)
Standards of the medical professional The Bolam test.........
..........enough for the defendant to show:
... he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view
What about a junior doctor?
Wilsher v Esex AHA (1987)
... can be expected to exercise a degree of care and skill appropriate to their 'post'
the duty can be discharged if seeks and acts on advice of a more senior doctor
Can a junior doctor decline....
...to act in cases beyond their competence?
Is there a difference in circumstances arising in being on call in a casualty department and in performing open heart surgery?
When expert evidence is produced on both sides of the argument ...
.....how can we be sure that it is that of a 'responsible body'?
Bolitho v City and Hackney HA: the court must be satisfied that
'...the exponents of the body of medical opinion relied upon can demonstrate that such opinion has a logical basis.'
The Bolito test
The new test laid down by the House of Lords:
The judge is permitted to choose between two conflicting expert opinions and can reject one of those opinions if it is not "logically defensible".
Can the Bolam principle be applied to ...
...giving a patient information or warning of risk?
Sidaway held that the Bolam test applied
Note: In Moy v Pettman Smith 2005 the Bolam test was applied to the question of the possible liability of a barrister in advising her client.
Res Ipsa Loquitur
Note special circumstances when this applies
What is the effect?
The Consumer Protection Act 1987
Liability without fault for defective products
Joint and several liability provides additional protection for consumers
Subject to numerous exception
Who can best bear the loss in the particular case?
Was the defendant insured?
What implications will the particular case have for future cases?
What standard of safety can potential claimants expect?
What is fair and just on the particular facts?
What are the implications of a particular decision for society as a whole?
Compensation Act 2006
A court may have regard to whether liability:
might-prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
discourage persons from undertaking functions in connection with a desirable activity.
A new standard of care?
Why was the section enacted?
Was it necessary?
What difference is made by section 1 of the Compensation Act 2006?
Hopps v McDonald
Pause for thought....
Is there inconsistency in Nettleship and Roe decisions?
In both cases the actions of the defendant have clearly harmed the claimant in circumstances in which the defendant can genuinely say that they were not culpable - yet we get different answers
In fact, Denning LJ may not...
...be adopting such a different approach. In both cases he is thinking about who should bear the loss.
Nettleship: although the claimant is found to be blameworthy the loss would fall on the insurers
Roe: liability would take money away from the NHS - money which might otherwise be used for other patients and treatments