CASE EXAMPLE
Glasgow Corporation v Muir [1943] 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:
JUDGMENT
‘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.’
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:
J 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).
J 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, profes- sional bodies, manufacturers, etc.
J 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.
J Whether or not the decision would ‘open the floodgates’ to further cases.
J Whether or not particular types of actions should be discouraged – for instance against the police or administrators of the law.
J Whether or not there are alternative means of gaining a remedy.
3.2 Determining the standard of care
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.
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
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3.2.1 Foreseeability of risk
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.
CASE EXAMPLE
Roe v Minister of Health [1954] 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.
CASE EXAMPLE
Walker v Northumberland County Council [1995] 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.
3.2.2 The magnitude of the risk
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 obvi- ously 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.
CASE EXAMPLE
Bolton v Stone [1951] 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 reason- ably possible to avoid risks of people being hit.
Lord Radcliffe identified the connection with the basic ‘reasonable man’ test:
JUDGMENT
‘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’.
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3.2 DETERMINING THE STANDARD OF CARE
The defendant though must take into account any factors that might increase the risk of harm occurring.
CASE EXAMPLE
Haley v London Electricity Board [1965] 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 inci- dents as well as in general terms.
CASE EXAMPLE
Davis v Stena Line [2005] EWHC 420 (QB)
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.
3.2.3 The extent of the possible harm (the ‘thin skull’ rule)
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.
CASE EXAMPLE
Paris v Stepney Borough Council [1951] 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.
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
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CASE EXAMPLE
Walker v Northumberland County Council [1995] 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 employ- ers 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 claim- ant’s health or physical characteristics.
CASE EXAMPLE
Mattocks v Mann [1993] 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.
3.2.4 The social utility of the activity
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.
CASE EXAMPLE
Watt v Hertfordshire County Council [1954] 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.
CASE EXAMPLE
Griffin v Mersey Regional Ambulance [1998] 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 [2010] 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.
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3.2 DETERMINING THE STANDARD OF CARE
3.2.5 The practicability of precautions
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.
CASE EXAMPLE
Latimer v AEC Ltd [1953] 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 [2001] 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.
CASE EXAMPLE
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.
3.2.6 Common practice
A negligent activity cannot be excused merely because it is common practice. Neverthe- less, 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.
CASE EXAMPLE
Brown v Rolls- Royce Ltd [1960] 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.
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