Step two for negligence Breach of Duty Step two for negligence

Breach of duty This requires consideration at two stages: What is the standard of care a reasonable person would exercise? Has the D fallen below the standard – in looking at this the courts consider a variety of ‘risk factors’

Standard of care This is an objective test this means that we do not judge what was reasonable from the D’s point of view but what a ‘reasonable and prudent man’ (Baron Alderson in Blyth v Birmingham Waterworks (1856) ) would consider, so it is irrelevant that the D believed what he was doing was ok. The ‘reasonable man’ was also described as ‘the man on the Clapham omnibus’ by Greer LJ

Special characteristics Since the test is objective, the courts do not necessarily take into account the D’s own personal characteristics: For example - Nettleship v Weston (1971) Facts: the C was a driving instructor and the D the learner driver. The D drove into a lamppost on her 3rd lesson and the C was injured. Held: the court said that even a learner was required to come up to the standard of a reasonable competent driver and she was negligent; (learner drivers are not given any special exemptions, there is one standard of care – that of a reasonably competent driver)

1. They do sometimes consider some ‘special characteristics’ of the D Children The standard of care for children is that of a reasonable child of the same age (Mullin v Richards (1998)) Professional skills The D’s profession or skills will be taken into account and the standard of care will be higher, ie it will be that of a professional with the same skill doing the same job (the ‘Bolam’ test)

But what about ‘special characteristics’ of the C? The courts have said that: Any reasonable D would take into account any special characteristics of the C which would increase the risk of injury or harm

Case: Paris v Stepney BC (1951) Facts: C was employed by the D’s garage and as a result of previous work had already lost one eye. His job included welding and the Ds had failed to give him protective equipment. One day whilst welding a piece of metal flew into his one eye and damaged it. Held: HoL said that not providing protective equipment for employees with no sight problems wouldn’t have made them liable but in this case it did because of the special characteristics of the C. The risk of the injury was small to the C but it had a huge consequence as he had the risk of going blind, also providing goggles was neither difficult or expensive

What is the magnitude of risk? What was the degree of risk involved? (How big was the risk taken?) Where the risk is small, it is unlikely that the D will be in breach.

Case: Bolton v Stone (1951) Facts: The C was walking down the street when she was hit by a cricket ball from a nearby cricket ground. There was a 17 foot fence around the ground and the wicket was some distance from the fence Held: court accepted that the cricketers should have foreseen the risk (evidenced by the fence etc) but this incident had only happened 6 times in 30 years, so the risk was very small. Taking all the evidence into account the court said the D was not negligent

What is the practicality of taking precautions? The chance of risk must be measured against the cost, time and practicality of eliminating the risk, the greater the risk, the more the D needs to do to eliminate it But the courts are not unreasonable and recognise where a D has taken every practical step to eliminate the risk as far as possible

Case: Latimer v AEC (1952) Facts: a factory became flooded and the floor was very slippery with water and oil. The Ds had spread sawdust on the floor to soak up the mixture to minimise the risk of anyone slipping. One worker did slip and injured himself. Held: HoL said the Ds were not negligent. It was clear that the floor was slippery and they had taken all practical precautions, the Ds’ only other option would have been to close the factory, this was disproportionate to the level of risk as it would have been very expensive.

Is there a social utility in doing the activity? Are there any benefits to taking the risk? Some risks benefit society and these must be weighed up against the possible damage caused if such risks are taken

Case: Watt v Herts CC (1954) Facts: the C was a fire fighter. He (with others) was called to the scene of an accident where a woman was trapped under a car. A heavy jack was needed to rescue her, the vehicle in which the C was travelling was not designed to carry a jack and the C sued when the jack slipped and injured him Held: the risk of transporting the jack was outweighed by the need to get to the scene urgently to rescue the woman and so C’s employers were not negligent