LAW OF TORT 1

LECTURE
UNIT 4: BREACH OF DUTY OF CARE:
STANDARD OF CARE
 NEGLIGENCE: BREACH OF
DUTY
Two principal Questions:
1) How should a person in the position of the
defendant should act in the particular
circumstances?

This refers to the standard of care that the

defendant is required to meet. that
 NEGLIGENCE: BREACH OF
DUTY Cont’d
• 2) Did the defendant meet the required
standard?

The standard of care of the “Reasonable

man” is expected.
If the defendant did not act as a reasonable
man would in the circumstances then it
would be an indication of negligence.
 NEGLIGENCE: BREACH OF
DUTY Cont’d
• It is often said that the “reasonable man”
formula allows judges to make decisions
based on the ground of policy.

1) Who can best bear the loss in the

particular case?
2) Was the defendant insured?
 NEGLIGENCE: BREACH OF
DUTY Cont’d
3) What implications would the instant case
have on future cases?
4) What is equitable based on the particular
facts?
5) What are the implications of a particular
decision on society as a whole?
 NEGLIGENCE: BREACH OF
DUTY Cont’d

• The issue is not what the particular

person ought to have done in the
circumstances but what a reasonable
person should have done in the
particular circumstances.
• Once it is established that the defendant
owed to the plaintiff a duty of care, it must
then be proved that the defendant was in
breach of the duty.
 NEGLIGENCE: BREACH OF
DUTY Cont’d
Interpretations: The classic definition of
negligence as per Alderson B:
1. “ negligence is the omission to do
something which a reasonable man,
guided upon those considerations
which ordinarily regulate human affairs,
would do, or doing something which a
prudent and reasonable man would not
do” : Blythe v Birminham (1856) 156 ER
1047
 The reasonable man
Who then is this reasonable man?
2.
“ the person concerned is sometimes
described as the ‘man on the street’, or the
‘man on the Clapham Omnibus’, or ..the
man who takes the magazines at home
and in the evenings pushes the
lawnmower in his shirt sleeves”
Hall v Brooklands Auto [1993] 1 KB 205
 The reasonable man

3. “ the standard of foresight of the

reasonable man eliminates the personal
equation and is independent of the
idiosyncrasies of the particular person
whose conduct is in question”

4. “ the reasonable man is never a woman”

 NEGLIGENCE: BREACH OF
DUTY Cont’d

5. “ nobody is deceived by the fiction that the

judge is stating not what he himself thinks,
but what an average reasonable man
thinks”
 NEGLIGENCE: The Objective
Standard
• The court will decide if the defendant
measured up to, or fell below the standard
of the reasonable man.
• The standard of care from this hypothetical
character is objective not taking into
account the weaknesses of the defendant
in the instant case.
• Eg. Standard for leaner driver same as
qualified driver: Nettleship v Weston
[1971] 3 All ER 581
 UNFORSEEABLE HARM
• Since the standard is that of the
reasonable man then the question is what
would he foresee?
• If the reasonable man would not foresee a
harmful consequence of an action, then a
defendant will not be negligent in failing to
take precaution
• Roe v Ministry of Health [1954] 2 All ER
131
 Factors to be weighed
• In deciding what precaution to take, the
hypothetical “reasonable person” (whether
engaged in skilled activity or not) will take
various factors into consideration.
• These may include the degree of risk; the
seriousness of the consequences if an
accident does occur, the cost and
practicability of guarding against the risk,
and the social importance of the activity.
 FACTORS IN ESTABLISHING
BREACH
• Risk Assessment
i) It is reasonable to assess the risks
involved in a particular situation, bearing in
mind the likelihood of harm.
ii) Was there an opportunity to reflect and
carry out a risk assessment?
iii) Management of risk
 Magnitude of Harm
• The court will consider the likelihood of
harm occurring. The greater the risk of
harm, the greater the precautions that will
need to be taken.
• Haley v London Electricity[1964] 3 All
ER 1078
 Defendant’s Purpose
If the defendant’s actions served a socially
useful purpose then he may have been
justified in taking greater risks.
Watt v Hertfordshire CC [1954] 2 All ER
368
 Practicability of Precautions
The courts expect people to take only
reasonable precautions in guarding
against harm to others.
Latimer v AEC Ltd. [1952] 1 All ER 1302
 General Practice
• If the defendant acted in accordance with
the common practice of others this will be
strong evidence that he has not been
negligence.
• Gray v Stead [1999] 2 Lloyds Rep 559
 Special Standards Appropriate
to Professionals
• Professionals will be judged by the
standard of the ordinary skilled man
exercising and professing to have that
special skill; if he is an amateur he will be
judged against the (possibly lower)
standards of the reasonable amateur so
long as the activity is one for an amateur
to attempt…but if he is an amateur and
holds himself out as a specialist he will be
judged as a specialist.
• It must be noted that it is no excuse for the
defendant to show that he is
inexperienced and that he did his
incompetent best, as the standard is that
of the reasonable man in the defendant’s
shoes; Nettleship v Weston held: that the
fact that a learner driver is inexperienced
and incompetent does not excuse his
falling short of this standard.
• The decision in such cases may see
harsh, but Lord Denning: The injured
person can only recover if the driver is
liable and insured.
• Morally the learner driver is not at fault, but
legally she is liable and the risk should fall
on her, as it would be even more unfair to
allow the injured victim to go without
compensation because the driver was
incompetent.
• Medical treatment is clearly a ‘skilled
activity’, and a doctor is expected to come
up to the standard of a reasonable doctor
practicing the skill in question.

• This is the basis of the Bolam Test.

• Bolam v Friern Hospital [1957] 2 All ER
118
 Professionals cont’d.
• People holding themselves out as having
specialist skill will be judged by the
standards of a reasonably competent man
exercising that skill.
• Wilsher v Essex Area Health Authority
[1986] 3 All ER 801
 Standard applied in Sports
• Spectators at a sporting event take the risk
of any injury from competitors acting in the
course of play, unless the competitor’s
actions show a reckless disregard for the
spectator’s safety.
• Participants in sport owe a duty of care to
each other which can be breached as in:
• Condon v Basi [1985] 2 All ER 453
 Sports cont’d.
• A referee who oversees a match may also
owe a duty of care to see that players are
not injured:
• Smoldon v Whitworth [1997] PIQR 133
 Standard applied to Children
• Children cannot plead infancy as a
defence to a tort.
• Children and young people will usually be
judged by the objective standard of the
ordinary prudent and reasonable child of
the same age.
• Mullins v Richards [1998] 1 All ER 920
 Children
• If a young person deliberately commits an
action with an obvious risk of harm, then
they may be judged by the standard of an
adult.
• Alternatively, school authorities or parents
may be liable in negligence for failing to
adequately supervise a child who
causes harm to another.
• Barnes v Hampshire CC [1969] 3 All ER
746
 Proof of Breach
• The claimant bears the burden of proving,
on the balance of probabilities, that the
defendant was negligent.
• In some instances the claimant may rely
on the maxim res ipsa loquitur ie the
thing speaks for itself.
 Res ispa loquitur
• The claimant who is unable to explain
how the accident occurred asks the court
to make a prima facie finding that there is
evidence of negligence.
• This does not mean the defendant is
negligent, but that in the absence of an
explanation by the defendant the claimant
has discharged the burden of proof.
 Res ispa
• From this the court can infer, without more
that the defendant is negligent. It will then
be for the defendant to prove that he was
not negligent.
• An eg. Is someone going to a hospital to
treat an injured finger and leaves with an
amputated arm. She relies on res ispa to
explain what happened.
• This raises a rebuttable presumption of
negligence.
 Res Ipsa Loquitur
• Conditions to be fulfilled:
• The defendant must have control over the
thing that caused the damage.
• The accident must be such that it would
not normally happen without
carelessness.
• The cause of the accident must be
unknown…if the cause is known it is not
res ispa.
 Res Ipsa Loquitur - effect
• It raises a prima facie inference of
negligence which requires the defendant
to provide a reasonable explanation of
how the accident could have occurred
without negligence on his part.
• If the defendant provides an explanation,
the inference is rebutted and the claimant
must prove the defendant’s negligence.
• Colvilles v Devine [1969] 2 All ER 53
 Res Ipsa Loquitur
It reverses the burden of proof requiring the
defendant to show that the damage was
not caused by his failure to take
reasonable care.
Henderson v Jenkins [1969] 3 All ER 756
 Res Ipsa
• The opinion of the Privy Council is that
burden of proof does not shift to the
defendant because the burden of proving
negligence rests throughout the case on
the claimant.
• Ng Chun Pui v Lee Chuen Tat [1988]
RTR 298
 NEGLIGENCE: BREACH OF
DUTY Cont’d
• Unforeseeable risk cannot be anticipated
• The utility of the conduct ( ambulance)
• The expense of taking precaution can be
considered
• Lack of special skills
 NEGLIGENCE: BREACH OF
DUTY Cont’d
• Contributory negligence and the standard
of care
• Children and young people
• The sick and disable
• Caregivers and organizers
• Drivers and other road users
• Marcia C. Robinson
• LLB, MBA, BSc. (Hons.)
• Attorney-at-Law/Lecturer