Liability in negligence Breach of duty

Lesson Objectives I will be able to describe the ‘reasonable man’ test I will be able to list the factors that affect the standard of care of the reasonable man I will be able to state and explain relevant examples for each of the above factors

The nature of the breach – the reasonable man Once it has been established that a duty of care exists, the claimant must satisfy the court that the defendant broke that duty of care by failing to reach the standard of care required The standard of care comes from the definition from Baron Alderson in Blyth v Birmingham Waterworks Co. (1856)

The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently (i.e. a reasonably competent driver, builder etc) This is an objective standard: the peculiarities of the person performing the task are irrelevant

Factors affecting the standard of care of the reasonable man When the court looks at whether a duty of care has been breached, it bases the standard on the reasonable man performing the task in the circumstances There are, therefore, a number of factors that can be considered to raise or lower the standard This is logical because a reasonable person will rightly take greater risks in an emergency, and take more care when the risk of harm is greater

These differences can be put into various categories. Commonly used questions to define the categories include: Are there any special characteristics of the defendant? Are there any special characteristics of the claimant? What is the size of the risk? Have all practical precautions been taken? What are the benefits of taking the risk?

Are there any special characteristics of the defendant? The defendant is expected to be a reasonably competent person performing the task. This is straightforward when dealing with everyday people doing everyday tasks Wells v Cooper (1954) – the standard of care required is one of the reasonably competent person doing the job in question. Here a man doing DIY was expected to reach the standard of a reasonably competent professional doing the job

This can have some surprising, but logical results: Nettleship v Weston (1971) – the standard of care expected of a learner driver is the same as that of any driver. This is logical from the point of view of those injured and because there is compulsory insurance. The position is much the same when dealing with a professional. When you go to hospital for an operation, you expect the same standard from your surgeon whether it is his first operation ever or not This is no different to the learner driver. The test is whether he is operating to the standard expected under a known and accepted procedure. This can be seen from the case Bolam v Friern Barnet Hospital Management Committee (1957)

The principle for professionals is established by asking two questions: 1.Does the conduct of the defendant fall below the standard of the ordinary competent professional? 2.Is there a substantial body of opinion within the profession that would support the course taken by the defendant? (It should be noted that in Bolitho v City and Hackney Health Authority (1997) it is open to the court to find the practice of the entire profession wrong. In such circumstances, the duty of care would be broken even if the normal practice was being followed) If the answer to the first question is ‘no’ and to the second question is ‘yes’, then the correct standard has been reached and the defendant has not broken his duty of care

It should be noted that where a reasonable man cannot know that a standard procedure is in fact dangerous, he will not break the duty of care This is because the reasonable man is not expected to know and protect against risks of harm that are not yet known scientifically Once the risk is known, there can be a breach of duty – Roe v Minister of Health (1954) – the reasonable man cannot take precautions against unknown risks. He will only break his duty by failing to take precautions when the risk becomes known

Are there any special characteristics of the claimant? The reasonable man takes more care where the situation demands it. This factor relates to risks known to the defendant as a result of peculiarities to the claimant Paris v Stepney Borough Council (1951) – where a defendant knows of an increased risk to the claimant, more care must be taken. The council knew he only had one good eye so needed to do more than usual to protect the other Walker v Northumberland County Council (1995) – where an employee has already had time off work with an illness or injury, the employer must then take more care to avoid a repeat or more serious illness. In this case it was stress- related

Another example of this is that a higher standard of care is expected by organisers and sports coaches to disabled athletes because of their special needs – Morrell v Owen (1983)

What is the size of the risk? The principle is that the greater the risk, the more care need be taken. To some extent this is an extension of the ideas behind the previous factors The reasonable man takes more precautions where the risk is greater, but does not take precautions against highly unlikely events The classic case on this is Bolton v Stone (1951) – the reasonable man takes precautions against reasonable risks, not fantastic possibilities. The likelihood of a cricket ball clearing the protective fence at the ground and injuring a passer-by was not a risk the reasonable man would protect against Haley v London Electricity Board (1964) – a reasonable risk to protect against is one that is statistically likely to occur. In this case, a blind pedestrian was not adequately warned of a trench across the pavement

Have all practical precautions been taken? It follows from the previous factor that a defendant will have acted reasonably if he has taken reasonable precautions The idea behind this factor is that the reasonable man will do all he reasonably can to prevent harm coming to others. In situations that are unexpected, this may not always prevent an accident, but the key is the reasonableness of the action taken Latimer v AEC (1952) – one factor in deciding whether the defendant has acted as a reasonable man is taking all practical precautions. After a flood, this was doing the best to mop up and warning the employees in the factory

What are the benefits of taking the risk? This factor is sometimes called public utility. The idea is that there is a lower standard of care when reacting to an emergency This is consistent with the idea of fair, just and reasonable in the third part of the Caparo test Watt v Hertfordshire County Council (1954) – the benefits of saving a woman’s life outweighed the risk of injury to a firefighter when using the best, but still unsuitable vehicle in an emergency

The approach of the courts is very realistic when an emergency arises as the courts want to encourage rescuers on the one hand, but also want to make sure employers are not put off encouraging employees to effect a rescue by the threat of being sued in negligence because they had not taken all reasonable precautions refused-wade-3ft-deep-lake-health-safety-rules.htmlhttp:// refused-wade-3ft-deep-lake-health-safety-rules.html Day v High Performance Sports (2003) – the standard of care can be lower when making a rescue, in this case on a climbing wall Breach of duty is concerned with the question of whether the defendant has reached the standard of care of a reasonable man. There are a number of factors that are relevant to this duty which raise or lower the standard expected