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NEGLIGENCE: BREACH OF DUTY
3.3 The standard of care and different classes of
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3.3 DIFFERENT CLASSES OF DEFENDANT
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 [1995]
1 QB 450 (s8.2.3)).
CASE EXAMPLE
Jenny v North Lincolnshire CC [2000] 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.
3.3.2 The disabled
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.
CASE EXAMPLE
Morriss v Marsden [1952] 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.
3.3.3 Motorists
In general the same standard of care is expected of all motorists regardless of their age or experience, and even of learner drivers.
CASE EXAMPLE
Nettleship v Weston [1971] 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:
JUDGMENT
‘[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.’
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NEGLIGENCE: BREACH OF DUTY
Lord Denning identified in the case that this is probably to do with the fact that motor- ists are obliged to carry compulsory insurance and therefore the degree of risk associ- ated 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.
CASE EXAMPLE
Roberts v Ramsbottom [1980] 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.
CASE EXAMPLE
Mansfield v Weetabix Ltd [1997] 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.
3.3.4 People engaged in sport
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.
CASE EXAMPLE
Condon v Basi [1985] 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.
CASE EXAMPLE
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 judge- ment that amounted to a breach of his duty of care to fellow players.
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3.3 DIFFERENT CLASSES OF DEFENDANT
However, the level of care required is always taken in the context of the individual cir- cumstances because of the inherent risk of injury of which each player is aware.
CASE EXAMPLE
Pitcher v Huddersfield Town Football Club Ltd [2001] 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 appropri- ate standard. He had mistimed his tackle but such errors of judgement were commonplace in the sport.
While participants in sport are inevitably aware of the risks of engaging in sporting activities, particularly contact sports of any kind, they are nevertheless to be protected from unnecessary harm by the officials in the game. In this way a referee in a sporting contest owes a duty of care to the players.
CASE EXAMPLE
Smolden v Whitworth [1997] PIQR P133
In a colts rugby match, that is one involving young and inexperienced players, the referee had been approached by the coaches about repeated collapsing of the scrum by players on the other side. He failed to properly control the scrums and eventually one player was seriously injured, leading to paralysis, when the scrum collapsed. The Court of Appeal agreed that the referee had fallen below the standard of care that he owed to the players. They were, however, eager to emphasise that the judgment was appropriate to the colts but not to the senior game where the players would be more experienced. (The existence of this duty and the appropriate standard have been recently affirmed in Vowles v Evans and Another [2003]
EWCA Civ 318.)
Sporting authorities may also fall below the appropriate standard of care when they fail to provide the proper facilities to deal with sporting injuries.
CASE EXAMPLE
Watson v British Boxing Board of Control [2001] QB 1134
The claimant suffered severe head injuries after a blow to the head during a boxing match as a result of which he also suffered brain damage. The organisers were held to be in breach of their duty of care by failing to provide adequate medical facilities at the ringside that could have reduced the extent of the damage.
A spectator at a sporting contest is generally said to consent to the risks associated with being present at the sport. A person engaged in the sport, then, will not be liable in neg- ligence to a spectator for any injuries or damage caused in the normal course of the sport unless the sportsman has shown a blatant and reckless disregard for the safety of the spectator.
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NEGLIGENCE: BREACH OF DUTY
CASE EXAMPLE
Wooldridge v Sumner [1963] 2 QB 43
A photographer stood behind a line of shrubs marking the perimeter of the arena at the National Horse Show at White City Stadium. The defendant tried to take a corner too fast on his horse with the result that the horse plunged through the shrubs and injured the claimant.
The Court of Appeal held that the defendant was not liable for negligence, but had merely made an error of judgement in how fast he should be going at the time.
In Mountford v Newlands School and Another [2007] EWCA Civ 21 the Court of Appeal held that a school would be liable for injury sustained in a seven- a-side under- 15 rugby game because the referee did not prevent a boy over 15 from playing in breach of the rules.
The duty of care owed to a disabled participant in sporting events will be greater than that owed to an able- bodied sportsman, simply because the disability will require a greater degree of care.
CASE EXAMPLE
Morrell v Owen, The Times, 14 December 1993
Here athletics coaches were held to be in breach of their duty of care to a paraplegic archer.
The disabled athlete was hit on the head by a discus and suffered brain damage as a result.
3.3.5 People lacking specialist skills
If a person carries out a task requiring a specialist skill he will be judged according to the standard of a person reasonably competent in the exercise of that skill. This does not mean that an amateur will be expected to show the same degree of skill as a professional.
CASE EXAMPLE
Wells v Cooper [1958] 2 QB 265
A tradesman delivering fish was injured when a door handle fitted by the householder came off in his hand. The Court of Appeal held that the appropriate standard of care was that of a reasonably competent carpenter. The claimant’s complaint was that the handle was fixed to the door with three- quarter-inch screws that he claimed were inadequate. Since these were the screws that a carpenter would have used there could be no negligence.
Nevertheless, a person not possessing specialist skills will not be expected to exercise the same standard of care as a skilled person unless that standard is appropriate to the circumstances.
CASE EXAMPLE
Phillips v Whiteley [1938] 1 All ER 566
A jeweller pierced ears in a whitewashed room using sterilised equipment. When the claimant contracted a blood disorder the jeweller was not negligent. He had taken all reasonable steps in the circumstances to avoid the risk of harm and could not be fixed with the same standard of care as a surgeon performing an operation. The appropriate standard of care was the degree of care that should be taken by a jeweller carrying out the procedure, not that which would be appropriate to a surgeon.
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3.3 DIFFERENT CLASSES OF DEFENDANT
3.3.6 People using equipment
In general where people use equipment they are taken to know how to use it properly, unless it is very specialist equipment requiring specialist skills. So where a person suffers injury, loss or damage while using the equipment there is no requirement by the other party to check that they are able to use it properly, and so no breach.
CASE EXAMPLE
Makepeace v Evans, The Times, 13 June 2000, CA
The claimant was a decorator hired by the first defendant sub- contractors, who in turn were hired by the second defendant main contractors. The claimant used a scaffolding tower pro- vided by the second defendants. Their site agent did not enquire whether the claimant was competent to use it. When the claimant was injured his action against the second defendants failed. It was a standard piece of equipment in the trade, and they were entitled to assume that he was able to use it, or seek advice. The court held that to say otherwise would be to
‘extend the nursemaid school of negligence too far’.
ACTIVITY
Quick quiz
Consider how it will be decided whether there has been a breach of a duty of care in the fol- lowing situations.
1. Jamie is an 11-year- old boy who has caused a crash by running out in front of cars while playing ‘chicken’.
2. Tom has been injured when stones from a quarry have hit him on his head after blasting. He was walking on a pavement a mile away from the quarry. The quarry face is shielded by a high hill, and no previous explosions from the quarry have ever caused this to happen before.
3. Tan, an acupuncturist, has been treating Rachel for pains in her shoulders. Tan has followed normal methods precisely but Rachel has suffered a rare infection.
4. During a forest fire Tristram used explosives to blow up his neighbour Ali’s trees in order to prevent the fire from spreading to his own farm and also to the nearby village of Trumpton.
ACTIVITY
Self- assessment questions 1. Who exactly is a ‘reasonable man’?
2. In what ways does a ‘reasonable man’ differ from an average man?
3. How big a part does policy play in determining the standard of care in negligence?
4. To what extent must a person owing a duty weigh up the risks associated with his acts and omissions?
5. What exactly is the ‘thin skull’ rule?
6. When will a standard of care be lowered due to inexperience of the person owing the duty?
7. What standard of care does a child usually owe?
8. What effect does the fact that the acts leading to the damage were common practice have on deciding whether there is a breach of duty?
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NegligeNce: breach of duty
YES
YES
YES
Did the defendant BREACH the duty?
The defendant fell below the standard of care appropriate to the particular duty owed:
• the defendant behaved in a way that a reasonable man would not; or failed to act in a way that a reasonable man would; and
• the risk of damage was foreseeable
• the risk was great
• practicable precautions could have been taken to avoid the harm
• the claimant was likely to suffer greater harm
• there was no reason for not avoiding the harm.
• the defendant was a professional who failed to behave in a way that a reasonable competent professional would
Did the defendant owe the claimant a DUTY OF CARE?
There was sufficient proximity between the parties, the damage was foreseeable and it was fair, just and reasonable to impose a duty
Did the defendant’s breach of duty CAUSE the claimant’s DAMAGE?
The defendant’s breach caused the damage, which was a reasonable foreseeable consequence of the breach of duty
THE DEFENDANT IS LIABLE FOR NEGLIGENCE
THE DEFENDANT IS NOT LIABLE FOR NEGLIGENCE NO
NO
NO
Figure 3.1 The essential elements for proof of negligence with particular emphasis on the breach of the duty of care.
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3.4 staNdard of care for ProfessioNals