Negligence – Standard of care and Breach of Duty

Law of Torts I

Lecturer: Christopher Gray

E-mail: cg15586@my.bristol.ac.uk

Once we have established that a duty of care exists, we must determine that the defendant has
breached that duty.

Key concept is: reasonableness.

The ‘reasonable person’

Alderson B in Blyth v Birmingham Waterworks Co

‘negligence is the omission to do something what 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’

An objective test
Question does not take into account the particular situation of the claimant, or the
circumstances, but merely look at how another, ‘reasonable’ person would act.

Glasgow Corp v Muir – ‘some persons are by nature unduly timorous and imagine every path
beset with lions; others, of more robust temperature, fail to foresee or nonchalantly disregard
even the most obvious dangers. The reasonable man is presumed to be free from over-
apprehension and from over-confidence’.

BUT a subjective element? What would the reasonable person have done in the defendant’s
circumstances.
External rather than internal circumstances.

Consider Nettleship v Weston – very famous case setting standard for driving

A hypothetical, not an ‘average’, standard

Sometimes a very poor reflection of the amount of care that people actually take in doing
things.
The reasonable person does not exist, may be given unnaturally high levels of skill and
consideration.

But – there is still an element of fault to driving. Consider Mansfield v Weetabix; Roberts v
Ramsbottom.
Factors relevant to the standard of care

1. Foreseeability of harm – the reasonable person cannot be expected to take precautions

against unforeseeable risks - Roe v Minister of Health

2. Magnitude of the risk – the reasonable person does not take precautions against very
unlikely risks – Bolton v Stone
But they do if they have very serious consequences – Paris v Stepney BC

3. Burden of taking precautions – if the burden is greater than the chance of risk
represents then the standard will not be so high – Latimer v AEC Ltd

If a precaution takes very little effort? Then even if a small risk, the standard is
breached – The Wagon Mound No 2

What about where the defendant cannot take precautions due to financial
circumstances?
PQ v Australian Red Cross Society – then they shouldn’t be taking the risk in the first
place?
What if they have no choice?

Knight v Home Office – financial constraints can be a relevant consideration for

public authorities. But not a complete defence.

4. Utility of the defendant’s conduct – if the defendant’s conduct has social utility, they
have a lower standard of care to reach – Daborn v Bath Tramways Motor Co Ltd

5. Common practice – if safety precautions are common practice, then failure to comply
will be strong evidence of negligence.
Brown v Rolls Royce – but the claimant must show that it if they had been followed it
would have prevented the harm
If the defendant can prove they have followed the common precautions, then this is
good evidence that there was no negligence.

The Learned Hand test

Judge Learned Hand in United States v Carroll Towing Co:

B < P x L = liability
B > P x L = no liability

Standards of care for special defendants

Children

Standard that should be expected from a reasonable child of the defendant’s own age –
Mullin v Richards
Defendants acting in an emergency

When the defendant is acting in the heat of emergency, the standard of care is relaxed to take
into account the situation – Jones v Boyce
And the police?
Marshall v Osmond – chasing a criminal might be an emergency situation
C.f. Rigby v Chief Constable of Northamptonshire

Participants in Sport

People playing sports do owe a duty of care to other participants and spectators.

Woolridge v Sumner – the sporting standard of care – only liable to spectators if they have
‘acted in reckless disregard of the spectators’ safety’

Wilks v Cheltenham Cycle Club – negligence if injury is caused “by an error of judgment that
a reasonable competitor, being the reasonable man of the sporting world, would not have
made”

Breaking the rules of the game is not a conclusive indication of negligence – Caldwell v
Maguire

A referee may also be liable if they fail to property enforce the rules of the game – Vowles v
Evans

The professional standard of care

Bolam v Friern Hospital Management Committee

Two principles:
- Where the defendant purports to have a special skill, the defendant’s conduct is
judged according to the standard of a reasonable person having the skill the defendant
claims to possess. Not judged by the standard of the reasonable lay person.
- The professional defendant can prove meeting the required standard of care is their
conduct is considered proper by one responsible body of professional opinion – even
if other bodies think the defendant’s conduct was negligent.

The standard of a reasonable skilled person

The member of a trade or profession should live up to the standard of someone in that trade
or profession.

What is relevant is whether they have held themselves out as possessing that skill (also
relevant if they have not) – Phillips v William Whitely Ltd

Still an objective standard of someone in that ‘post’ – Wilsher v Essex Area Health Authority
Junior doctor occupying a post normally held by a senior doctor, held to the higher standard.
“it would be a false step to subordinate the legitimate expectation of the patient that he will
receive from each person concerned with his care a degree of skill appropriate to the task
which he undertakes, to an understandable wish to minimise the psychological and financial
pressures on hard-pressed junior doctors”

Common practice and professional opinion

In Bolam, conflict in professional opinion lead to the test where the standard would not be
breached if the doctor ‘acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art’.

This is very controversial – places professionals above the law? Allows them to self-
regulating?

This binds the judge in some ways? Maynard v West Midlands Health Authority
“a judge’s ‘preference’ for one body of distinguished professional opinion to another also
professionally distinguished is not sufficient to establish negligence in a practitioner”

Limits to Bolam

The views must be ‘responsible’ – just because something is common practice doesn’t mean
that it is not commonly negligent – Edward Wong Finance Co v Johnson, Stokes and Master

Bolitho v City and Hackney Health Authority – asserted the limits to the Bolam principle –
that the evidence may be rejected if it is not ‘responsible’, and cannot withstand logical
analysis.

Disclosure of risks

Sidaway v Bethlem Royal Hospital Governors – patient not informed of very small risk of
spinal damage. Bolam test applied in this instance and held that it was common practice not
to inform of such small risks.

“The doctor cannot set out to educate the patient to his own standard of medical knowledge
of all the relevant factors involved […] the risk may assum[e] undue significance in the
patients calculations”

In Sidaway, the patient hadn’t asked – if they did, then the doctor would be expected to
answer ‘both truthfully and as fully as the questioner requires’ – Chester v Afshar

Proving breach of duty

Criminal convictions are taken as proof that someone has committed the offence, unless the
contrary is proved.

Res ipsa loquitur – ‘the thing speaks for itself’

If an event which can only have occurred through negligence occurs, then the claimant
doesn’t need to prove a breach.
Scott v London and St Katherine Docks Co