NEGLIGENCE – BREACH OF DUTY OF CARE
Essential Elements in the Tort of Negligence
1. Duty of care
2. Breach of Duty of Care
3. Causation.
BREACH OF DUTY OF CARE.
- Has the Defendant done something which a prudent or reasonable man would not do?
- Has the Defendant failed to do something which, in the circumstances, a reasonable man would do?
STANDARD OF CARE REQUIRED IS THAT OF HYPOTHETICAL REASONABLE MAN.
(Blyth v Birmingham Waterworks Co – 1856) ‘MAN IN STREET’, ‘MAN IN CLAPHAM OMNIBUS’.OBJECTIVE (no account of idiosyncrasies of the person whose conduct is in question)OBJECTIVE – Not distorted by personal feelings or bias.
ESTABLISHING BREACH OF DUTY OF CARE
The Court must determine whether:a. The Defendant has done something which a prudent or reasonable man would not do ORb. The Defendant has failed to do something which a reasonable man would do.
MUST ASSESS HOW REASONABLE MAN WOULD BEHAVECONSIDER THE FOLLOWING:
1. The Magnitude of the riskCan occur in 2 ways:
- High risk as so likely to happen
- High risk as consequences of it happening are so serious for Claimant.The greater the risk, the more precautions have to be taken.
Bolton v Stone – HL – 1951The claimant was standing in the road when she was struck by a cricket ball which was hit out of the defendants’ ground. The evidence was this had happened 6 times in preceding 30 years. It was held that the risk was so small that the defendants were justified in not taking further measures to eliminate the risk.(Imagine military training area with live ammunition)
Paris v Stepney Borough Council – 1951-HLThe Claimant who had only one good eye, went completely blind when, during the course of his employment a chip of metal entered his good eye. He sued his employer for negligence, contending that as his employer knew he only had one good eye, they should have provided him with goggles. The employer’s defence was that it was not customary to provide goggles to their employees.Lord Morton said “The more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer should take”. The employer was found in breach of his duty of care in failing to provide goggles.2. The cost and practicality of measures to overcome the risk.
Latimer v AEC Ltd – 1953 – HLThe floor of the Defendant’s factory became flooded after heavy rain. The water mixed with some oil and the floor became slippery. The Defendant sprinkled sawdust but did not have sufficient sawdust to cover the entire floor. The claimant employee slipped on an uncovered area of the floor and sustained an injury. The claimant alleged that the Defendant was negligent in failing to close the factory that day and send the workers home. The House of Lords held that in the circumstances of the case the employer had taken reasonable precautions and was not in breach of duty.(Where risk great employer may have to close business – fire and structural damage).
3. The purpose of the Defendant’s Act
Watt v Herford CC – 1954 – CAA Fireman was injured by the movement of a heavy jack whilst travelling in a lorry which was not properly equipped to carry it. The Jack had been placed on the lorry as it was urgently needed to save the life of a woman who had become trapped under a bus. Held that in these circumstances the Defendants were justified in exposing the claimant to the risk.Denning “The saving of life or limb justifies taking considerable risk”.
TEST OF REASONABLE MAN v CHARACTERISTICS OF DEFENDANT
Legal standards generally take no account of the personal characteristics of the Defendant.Not sufficient for Defendant to say did incompetent best. Inexperience of lack of intelligence or slow reactions provide no excuse to a charge of negligence. Nor will a defendant be able to rely on disability – a partially sighted driver and learner driver owe the same duty of care as one with normal sight. But are cases which are approached differently
.1. ChildrenMullin v Richards – 1998 – CATwo 15 year old girls engaged in play fight with plastic rulers. One of the rulers broke and a bit of plastic entered the eye of one of the girls (the Claimant) causing her to lose her sight in that eye.Hutchinson LJ said:“The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15 year old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave risk to the injury….the test is whether an ordinarily prudent and reasonable 15 year-old schoolgirl in the defendant’s situation would have realised as much”.
2. ProfessionalsPersons holding themselves out as having a particular skill or profession must attain the standard of the reasonably competent person exercising that skill or profession.
Bolam v Friern Hospital Management Committee 1957McNair J said “..where you get a situation which involves the use of some special skill or competence, then the test,, is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. It is the test of the ordinary skilled man exercising and professing to have this special skill….
A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.FACTS: the claimant had undergone electroconvulsive therapy which resulted in serious injuries. He alleged negligence and said he should have been informed of the risk of fracture before he consented to the treatment and that the drugs should have been given to him before the therapy to make him more relaxed.HELD: Not negligent because the practices were consistent with those in other hospitals.NOTE: It is part of professional’s duty to keep abreast of new developments and techniques.
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