General Negligence - Breach Of Duty/standard Of Care

Front 1

Vaughan v Menlove (1837)

Back 1

The defendant built a haystack on land adjoining the claimant's property. As a result of poor ventilation, the haystack caught alight and caused damage to the claimant's land. The defendant had been warned of the possibility of this happening but had chosen to ignore it (he was, he explained, fully insured). Despite the defendant's claim that he had honestly misjudged the risk, he was found liable. A reasonable person would not have taken the risk and would have adopted preventative precautions.

Front 2

Nettleship v Weston [1971]

Back 2

Authority for General Standard Test: "We want the defendant to meet the standard of the reasonably competent [insert role/task the defendant is doing]."

General rule for setting the standard of care: it attaches to the task and is objective: we look a what a reasonable man would do.

The defendant was a learner driver who was taking lessons from a friend. The friend checked that the defendant's insurance covered her for passengers before agreeing to go out with her. On one of the lessons, Mrs Weston turned a bend, Mr. Nettleship told her to straighten the wheel but it was too late. She mounted a pavement and hit a lamppost. Mr Nettleship fractured his knee. The defendant said that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk.

It was held that a learner driver is expected to meet the same standard as a reasonable qualified driver. Volenti did not apply as he had checked the insurance cover which demonstrated that he did not waive any rights to compensation. His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.

This decision was made with consideration to a. the fact that it would be hard to police a sliding scale that was subjective; b. its promotion of road safety; c. its promotion of insurance - which she could afford.

Lord Denning: The required standard of care '... eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose act is in question.'

Front 3

Wilsher v Essex Area Health Authority [1988]

Back 3

A junior doctor was judged by the standard of the reasonable doctor in that field of medicine, regardless of his own inexperience. The standard is tailored to the activity the doctor is undertaking, not to his individual level of experience.

The test is based "On the Act and not the Actor."

Front 4

Etheridge v East Sussex County Council [1999]

Back 4

A person does not have to do everything possible to prevent harm; rather, they have to reach the standard of what a reasonable person would do.

Here, the claimant, a school teacher, was injured when a basketball, thrown by a pupil, hit her as she was climbing some stairs. Her claim against the school failed as the school had procedures and systems in place to prevent such accidents. The school was not required to give an absolute guarantee for the safety of everyone on the school's premises.

Front 5

Glasgow Corporation v Muir [1943]

Back 5

Courts will impose a higher or different standard of care on the defendant where it considers that this is appropriate.

Front 6

Bolam v Friern Hospital Management Committee [1957]

Back 6

Authority for professional standard test: "We want the defendant to meet the standard of the reasonably competent professional [insert role/task the defendant is doing]."

"A man need not possess the highest expert skill at the risk of being found negligent... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

Front 7

McHale v Watson (1966)

Back 7

Exception to the General Rule: Standard for children is that of what a reasonable child of the same age would do.

Australian case: Australian court accepted that a child should be judged according to the standard of the reasonable child of the defendant's age - but they refused to take into account any of the child's other characteristics (e.g. that he was 'slow-witted, quick-tempered, absent-minded or inexperienced.')

Front 8

Mullin v Richards [1998]

Back 8

Exception to the General Rule: Standard for children is that of what a reasonable child of the same age would do.

The defendant and the claimant were both 15-year-old school girls. The claimant was injured when a piece of plastic ruler broke off during a 'play fight' and hit her in the eye. The Court of Appeal held that the correct test is whether the reasonable and careful 15 year old would have foreseen the risk of injury. On the facts of the case, the two schoolgirls could not reasonably have foreseen any significant risk of the likelihood of injury.

"We expect from them the standard of the reasonable competent child unaware of the dangers of playing with rulers."

Front 9

McEllistrum v Etches (1956)

Back 9

Canadian Courts take into account the child's intelligence and experience as well as his age.

Front 10

Philips v William Whiteley [1938]

Back 10

Jeweller who undertook ear piercing needs to possess the skill of the reasonable jeweller, not that of a surgeon.

Front 11

Wells v Cooper [1958]

Back 11

DIY fanatic who is undertaking a task normally performed by ordinary men needs to reach the standard of the reasonable man - not that of the experienced carpenter. It might be different if he had undertaken complicated electrical rewiring or plumbing.

Front 12

Gates v McKenna [1998]

Back 12

A stage hypnotist had to reach the standard the reasonably careful exponent of stage hypnotism would adopt to prevent any injury to a member of the audience.

Front 13

Watson v Gray, The Times, 26 November 1998

Back 13

A professional footballer had to reach the standard the reasonably careful professional footballer would adopt to prevent any injury to a member of the audience.

Front 14

Wimpey Construction UK Ltd v Poole [1984]

Back 14

Professionals who claim to possess greater skill than that normally possessed by a member of their profession are still judged by the standard of the ordinary reasonable member of the profession. They may nevertheless be liable for breach of contract in certain situations if they fail to deliver the higher level of skill promised.

Front 15

Greaves & Co v Baynham Meikle & Partners [1975]

Back 15

If the defendant takes on a task that they ought to know is beyond their capabilities then that may be evidence in itself of negligence.

Front 16

Roberts v Ramsbottom [1980]

Back 16

The defendant, an elderly man, suffered a stroke whilst driving his car. As a result, there was an accident and the claimant sustained an injury. The court held that the defendant was negligent; he had to be judged according to the standard of the reasonable competent driver. Emphasis was placed on whether he should have stopped the car as soon as he realised that his driving was being affected. Neill J held that the defendant could only escape liability if the incapacity amounted to automatism - i.e. total loss of consciousness or control.

Front 17

Mansfield v Weetabic Ltd [1998]

Back 17

A lorry driver crashed his vehicle into the claimant's shop after suffering a hypoglycaemic state. There was no evidence that the driver knew that his ability to drive was impaired. The Court of Appeal held that the defendant should be judged in comparison with a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive. The driver was thus not found liable.

Front 18

Vowles v Evans, The Times, 13 March 2003

Back 18

An amateur rugby referee must meet the standard of the amateur rugby referee.

Front 19

Blake v Galloway [2004]

Back 19

Even where the game being played amounts to horseplay rather than organised sport, there may well be no breach of duty in respect of any injury caused to the claimant, provided that the defendant's conduct does not amount to recklessness or a very high degree of carelessness.

Front 20

Maynard v West Midlands Regional Health Authority [1984]

Back 20

If a defendant can show that they have acted in accordance with a practice usually followed by others in that field, they may escape liability.

A doctor who acted in accordance with a common practice adopted by a reasonable body of medical practitioners was held not to have been negligent.

Front 21

Re Herald of Free Enterprise, The Independent, 18 December 1987

Back 21

If a defendant can show that they have acted in accordance with a practice usually followed by others in that field, they may escape liability. However, the court can always rule that the common practice is itself negligent.

Here, the common practice of sailing a RO-RO ferry with the bow doors open was declared negligent.

Front 22

Bolton v Stone [1951]

Back 22

The more likely someone is to get injured, the more likely it is that there will be a breach. A defendant does not have to guard against very minor risks of injury.

Here, the claimant was injured by a cricket ball that was hit out of the cricket ground. Evidence was that this had only happened six times in the previous 30 years and that the ground had a 17ft high fence around it. The chances of that happening and thereby injuring someone were so slight that there was no breach of duty; the reasonable man would not have guarded against such a small risk.

Front 23

Pearson v Lightning, The Times, 30 April 1998

Back 23

The more likely someone is to get injured, the more likely it is that there will be a breach. A defendant does not have to guard against very minor risks of injury.

Here, a golfer whose ball bounced off a tree and hit another player was liable because in the circumstances it was foreseeable that the claimant might be injured if the difficult shot the defendant was playing went wrong. The risk of injury was not so slight that a reasonable person would not have anticipated it.

Front 24

Paris v Stepney Borough Council [1951]

Back 24

If any injury that may occur would be serious, greater care will be needed than if the risk of injury was slight.

If the defendant is aware that the claimant is less able to take care of himself, or is at greater risk compared to others, then the defendant will be required to exercise greater care than would otherwise be the case.

Here, the claimant had only one good eye, a fact known to his employers, the defendants. Despite this, no protective goggles were provided and he became blind when a piece of metal went into his good eye. The House of Lords held that the defendant was liable. Although the risk of injury was small, the consequences of the injury were significant.

Front 25

Watson v British Boxing Board of Control Ltd [2001]

Back 25

If any injury that may occur would be serious, greater care will be needed than if the risk of injury was slight.

The defendant, the sole controlling body regulating professional boxing, breached its duty towards the claimant, Michael Watson, who had suffered permanent brain damage while fighting Chris Eubank. The Board should have had ringside resuscitation equipment available and doctors who knew how to use it. One factor which weighed with the court was that 'serious brain damage ... represented the most serious risk posed by the sport and one that required to be addressed.'

Front 26

Yachuk v Oliver Blais Co Ltd. [1949]

Back 26

If the defendant is aware that the claimant is less able to take care of himself, or is at greater risk compared to others, then the defendant will be required to exercise greater care than would otherwise be the case.

The defendants sold petrol to a nine year-old child. They should have realised that a child would not fully appreciate the dangers of the fuel exploding.

Front 27

Latimer v AEC [1953]

Back 27

It is also necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to require them to take the necessary precautions, the court will accordingly not impose liability.

The defendant's factory floor became slippery following a flood and the claimant slipped on it. The defendant had taken some precautions, but the only way to guarantee safety could have been to cease operating the factory, or to employ many more people to mop up spills. Neither of these precautions was justified given the small risk of injury to the claimant.

Front 28

Bottomley v Secretary and Members of Todmorden Cricket Club, The Times, 13 November 2003

Back 28

It is also necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to require them to take the necessary precautions, the court will accordingly not impose liability.

The defendant cricket club was liable to the claimant who had been injured by a fireworks display on the club's land. The club had engaged the services of an independent contractor to present the display, but had failed to take adequate precautions in ensuring that the contractor had safety plans and public liability insurance.

Front 29

Payling v Naylor, The Times, 2 June 2004

Back 29

To be distinguished from Bottomley v Secretary and Members of Todmorden.

Here the claimant suffered serious head injuries after being ejected from the defendant's nightclub by a doorman employed by a security firm. The claimant alleged that the defendant had breached his duty by failing to ensure that the firm had public liability insurance cover. The claim failed on the basis that the defendant was not obliged to check the contractor's insurance position as a necessary or even just a prudent means of assessing his competence. By contrast, in Bottomley, the insurance position might have had a bearing on the assessment of competence.

Front 30

Watt v Hertfordshire County Council [1954]

Back 30

If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may in some circumstances be justified and hence not constitute a breach of duty. In effect, the potential benefits to safety are weighed against any possible damage that may result if the risk is taken.

A fireman was injured in a fire engine on the way to answer an emergency call (a woman was trapped under a lorry.) The lifting equipment required to deal with the emergency was being carried but had not been properly secured in transit. It was held that there was no breach by the firemen's employer, as the risk of injury was small and the ultimate aim of saving life justified taking the risk.

Front 31

Ward v London County Council [1938]

Back 31

If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may in some circumstances be justified and hence not constitute a breach of duty. In effect, the potential benefits to safety are weighed against any possible damage that may result if the risk is taken.

Negligence here was found to exist when a fire engine jumped a red traffic light. The risk of injury to the claimant was too high to have been run, even though the case involved the emergency services.

Front 32

Smith v Kempson [2011]

Back 32

The burden to prove that the defendant breached the duty of care is on the claimant. He must show this on the balance of probabilities.

Front 33

Scott v London and St Katherine Docks & Co (1853)

Back 33

Doctrine of Res Ipsa Loquitur: the facts speak for themselves. Used where the only plausible explanation for the claimant's injuries is that the defendant has been negligent.

Here, the claimant was injured when a number of large sacks of sugar fell onto her. She could not explain how this had occurred, but since they had been in the defendant's control, the court was able to infer that the accident had been due to the defendant's lack of care.

Front 34

Mahon v Osborne [1939]

Back 34

Doctrine of Res Ipsa Loquitur: the facts speak for themselves. Used where the only plausible explanation for the claimant's injuries is that the defendant has been negligent. The accident must also be of the kind that would not normally happen without negligence. If there could be an innocent explanation of the accident, then the maxim will not work.

The principle was held to apply when a swab was left inside the body of a patient following an abdominal operation.

Front 35

Ng Chun Pui v Lee Chuen Tat [1988]

Back 35

Doctrine of Res Ipsa Loquitur: the facts speak for themselves. Used where the only plausible explanation for the claimant's injuries is that the defendant has been negligent.

The maxim may have the effect of requiring the defendant to provide answers and explanations, but it will still be for the claimant to prove negligence.