Breach of the duty of care

2.2.1 The Standard of Care and Reasonable Man Test

1 A breach occurs whenever a defendant falls below the standard of care appropriate to the particular duty owed.

2 The standard is objectively measured by the ‘reasonable man’ test: ‘the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.’ Per Alderson B in Blyth v Birmingham Waterworks (1865).

3 The reasonable man has been described as ‘the “man on the street” or “the man on the Clapham omnibus” …’

4 Or, as MacMillan LJ put it in Glasgow Corporation v Muir (1943), the test is ‘independent of the idiosyncrasies of the particular person whose conduct is in question … The reasonable man is presumed to be free from both over-apprehension and over-confidence’.

5 So breach of duty then is merely the same as fault.

6 Factors of policy and expediency are taken into account, e.g.:

who can best bear the loss;

whether or not the defendant is insured;

how the decision might affect future behaviour;

the justice of the individual case;

how the decision affects society as a whole.

7 Judges have established criteria by which to measure the standard.

2.2.2 Principles in determining the standard of care

1 Foreseeability: no obligation for defendant to compensate for incidents beyond his normal contemplation or outside his existing knowledge; compare Roe v Minister of Health (1954) with Walker v Northumberland County Council (1995).

2 Magnitude of risk: the care expected depends on likelihood of risk – compare Bolton v Stone (1951) with Haley v London Electricity Board (1965).

3 Social utility: a risk averting a worse danger may be justified (Watt v Hertfordshire CC (1954)), but not any risk at all (Griffin v Mersey Regional Ambulance (1998)).

4 Practicality of precautions: need not take extraordinary steps or suffer extraordinary cost (Latimer v AEC (1953)) – but if defendant is in sufficient control to avoid harm then s(he) is obliged to act (Bradford-Smart v West Sussex County Council (2002) on preventing bullying in schools).

5 Common practice: usually, but not always, suggests non-negligent practice (Brown v Rolls Royce (1966)).

6 Specific classes of people have specific rules.

a) Children: originally not expected to take same care as adults (McHale v Watson (1966)), but see now Morales v Ecclestone (1991) and Armstrong v Cottrell (1993) and see Orchard v Lee (2009) for instance on ‘boisterous activity in a playground’.

b) The disabled and sick: standard appropriate to disability.

c) Motorists: the same standard applies to all drivers, even learners (Nettleship v Weston (1971)) and one becoming ill while driving (Roberts v Ramsbottom (1980)), but not if unaware of the illness (Mansfield v Weetabix Ltd (1997)).

d) People lacking specialist skills: not expected to show same standard as a skilled person (Phillips v Whiteley Ltd (1938)).

e) Sport: standards applicable to reasonable competitors (Condon v Basi (1985)), reasonable officials (Smoldon v Whitworth (1997)) or reasonable sporting authority (Watson v British Boxing Board of Control (2001)). But standard depends on individual circumstances (Pitcher v Huddersfield Town FC (2001)) and ‘horseplay’ may be covered by the same standard as sport (but only where the defendant’s conduct amounts to a high degree of carelessness (Blake v Galloway (2004)).

7 Experts and professionals are not bound by the standards of a reasonable man but those of a reasonable practitioner of that particular skill or profession (Bolam v Friern Hospital Management Committee (1957)).

a) The test also applies to advice and information (Sidaway v Governors of Bethlem Royal & Maudsley Hospitals (1985)) and warning of risk (Chester v Afshar (2002)).

b) And to diagnosis (Ryan v East London & City Health Authority (2001)).

c) So professionals need only provide expert witnesses who agree with conduct in question (Whitehouse v Jordan (1981)).

d) Some practices are unacceptable even though common (Re Herald of Free Enterprise (1989)).

e) Trainees must show the same degree of skill as experienced professionals (Wilsher v Essex AHA (1988)).

f) The test applies even if the defendant does not have full professional qualifications (Adams v Rhymney Valley DC (2000)).

g) The rule has been approved since. ‘There is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence’, per Lord Scarman in Maynard v West Midlands RHA (1985).

h) Only a small number of doctors following the practice is sufficient to relieve liability (De Freitas v O’Brien and Conolly (1995), where 11 out of 1,000 would have operated).

i) However, the test has been subject to many criticisms:

2.2.3 Proof of negligence and res ipsa loquitur

1 Normally the burden of proof is on the claimant, who has the hard task of collecting evidence.

2 This can be relaxed in two instances:

a) for criminal convictions under s 11 Civil Evidence Act 1968;

b) if the plea of res ipsa loquitur is raised.

3 Literally translated this means ‘the thing speaks for itself’.

4 Succeeding with the plea means burden of proof is reversed.

5 However, Wilsher (1987) suggests that it merely raises a refutable presumption of negligence.

6 It is narrowly construed for fairness – the facts must conform to the criteria in Scott v London & St Katherine Docks (1865).

7 There are three essential requirements for the plea to succeed.

a) At all material times the thing causing injury or damage must have been in defendant’s control. Compare Gee v Metropolitan Railway Co (1873) with Easson v London and North Eastern Railway (1944).

b) The incident has no obvious alternative explanation (Barkway v South Wales Transport Co Ltd (1950)).

c) The accident is of a type which would not occur if proper care was shown so is of a type commonly caused by negligence (Scott v London & St Katherine Docks (1865); Mahon v Osborne (1939); and Ward v Tesco Stores (1976)).

8 It is debatable whether res ipsa loquitur applies in medical negligence but it is often pleaded because of a difficulty in gaining evidence.

9 However, it has been rejected by both the courts and Pearson because of fear of escalating claims and insurance premiums.

2.2.4 Strict liability in negligence

1 Res ipsa loquitur formerly applied to foreign bodies in food.

2 Consumer Protection Act (1987) was introduced to comply with EU directives.

It introduced strict liability on anyone in the distribution chain where the consumer suffers harm.

Fault liability was removed, but causation is still required.