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Tort | Negligence

Breach of Duty: Standard of Care

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Breach of Duty: Standard of Care

[Flash Card 1 of 5]

  • breach of standard of care (SoC) 2 part test: what standard of care D should have exercised (Q of law) / whether D's conduct fell below required standard (Q of fact)

Reasonable person: definition

  • general rule: reasonable man / SoC required is objective
  • Baron Alderson: .. standard demanded is thus not of perfection but of reasonableness... [D] may do the best he can & still be found negligent... (Blyth v Birmingham Waterworks (1856))
  • Greer LJ: .. man on the Clapham omnibus... (Hall v Brooklands Auto-Racing Club [1933]) / Lord Steyn: .. commuters on the London Underground... (McFarlane v Tayside Health Board [1999])
  • objective test: What would reasonable person have foreseen in particular circumstances? D required to take as much care as reasonable person in his position
  • .. standard of foresight of the reasonable man is... impersonal test... independent of the idiosyncrasies of [D]... (Glasgow Corp v Muir [1943])

Reasonable person: considerations

  • risk: seriousness & likelihood / injury or damage / before acting
  • taking reasonable steps / precautions / to limit risk
  • D's purpose / reason for taking risk
  • reasonably foreseeable: common practice / current state of knowledge
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Breach of Duty: Standard of Care

[Flash Card 2 of 5]

Reasonable person: risk

  • likelihood of injury or damage / general rule: less likely / lower SoC required
  • cricket ball / D met SoC: risk of injury minimal / D taken preventative measures (wall) / reasonable person not have anticipated injury (Bolton v Stone [1951])
  • cricket ball / D not met SoC: frequency damage / more measures needed (Miller v Jackson [1977])
  • not always reasonable to ignore small risk
  • hammer to indicate pavement hole / D not met SoC: reasonably foreseeable unaccompanied blind pedestrians / should be ignored (Haley v London Electricity Board [1965])
  • seriousness of injury or damage / general rule: more serious / or if D aware of enhanced risk of serious injury / greater SoC required
  • D knew worker already blind in one eye / D not met SoC: probability of injury very small / consequences very serious / should have taken extra care (goggles) (Paris v Stepney BC [1951] )

Reasonable person: precautions

  • courts consider cost & practicality of measures D could have adopted to prevent injury or damage
  • unreasonable: if risk / substantially reduced / low cost & D failed to take/ reasonable: if precautions/ very limited reduction in risk & cost a lot
  • lack of resources: not usually defence for D failing to exercise reasonable care
  • general rule: greater risk / greater requirement to take precautions
  • oily floor due to exceptionally heavy storm / D taken all reasonable steps: signs / warned staff / used available sawdust / alternative close the factory (not practical or reasonable solution) ( Latimer v AEC [1953] )
  • blind pedestrian / D liable: fence cheap & effective precaution ( Haley v London Electricity Board [1965])
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Breach of Duty: Standard of Care

[Flash Card 3 of 5]

Reasonable person:defendant's purpose

  • general rule: greater social utility of D's conduct / less likely D negligent / if unlawful or no social utility very high SoC required even if small risk
  • World War II left hand drive ambulance / lower SoC: converting prohibitively expensive / public interest / Asquith LJ: .. the purpose to be served if sufficiently important, justifies the assumption of abnormal risk... (Daborn v Bath Tramways [1946] )
  • fire fighter / Lord Denning: .. in measuring due care one must balance the risk against the measures necessary to eliminate the risk... the saving of life or limb justifies taking considerable risk ... (Watt v Hertfordshire CC[1954])
  • despite nature of emergency services / not immune from Negligence claims
  • police car / D not met SoC: failed use siren (Armsden v Kent Police [2009])
  • in sport SoC takes into account: sport socially desirable / accepted some risks justified
  • football tackle / .. there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match... (Condon v Basi [1985])
  • motorbike race spectator / SoC take account of D's desire to win (Wilks v Cheltenham Cycle Club [1971])

Reasonable person: common practice

  • general rule: compliance with accepted practice / D good argument met SoC / but D's conduct may still be negligent
  • Zeebrugge ferry disaster / D's actions negligent / despite common practice (Re The Herald of Free Enterprise (1987))
  • non-compliance: statutory standards regulations & Codes of Practice / D may be liable for breach of statutory duty


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Breach of Duty: Standard of Care

[Flash Card 4 of 5]

Reasonable person: current state of knowledge

  • current state of knowledge: used to determine what reasonable person could have foreseen
  • glass vial / Denning LJ : .. the court must not look at the 1947 accident with 1954 spectacles... ( Roe v Minister of Health [1954] )

Reasonable person: limitations

  • dog in car / Lord Dunedin : .. People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities...( Fardon v Harcourt-Rivington [1932] )
  • undiagnosed illness / D must meet SoC of reasonable driver who is unaware of his condition ( Mansfield v Weetabix [1998] )

Special standards: skilled defendant

  • skilled D required to carry out task to standard of reasonably competent skilled person
  • Bolam test: doctor not in breach / if acted in accordance with practice accepted by responsible body of medical opinion / ..A man need not possess the highest expert skill... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art... (Bolam v Friern Hospital [1957] )
  • HoL: court may reject accepted practice of profession / if can be shown that practice is not logically supportable (Bolitho v City & Hackney HA [1997] )
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Breach of Duty: Standard of Care

[Flash Card 5 of 5]

Special standards: under skilled defendant

  • court determine SoC required for relevant activity in each case
  • door handle / D met SoC: standard of reasonably competent amateur carpenter (lower than standard expected of professional carpenter working for reward) / sort of job reasonable householder might do for himself / but if D attempts job which exceeds capability & usually professional may be negligent for D to have even undertaken (Wells v Cooper [1958])
  • generally: inexperience does not lower required SoC
  • excess oxygen / D not met SoC: junior doctor expected to show competence of any other doctor in same job / patient's legitimate expectation of competent treatment not altered by experience of doctor / inexperienced doctor should ask for expert assistance if necessary ( Wilsher v Essex HA [1987] )
  • learner driver / D not met SoC: standard of reasonably competent driver / policy: liability insurance compulsory & additional risk accounted for by higher premiums (Nettleship v Weston [1971])

Special standards: children

  • child Ds SoC: ordinary child of same age
  • ruler fight / D met SoC: insufficient evidence accident foreseeable / age relevant factor (Mullin v Richards [1998])
  • very young children rarely liable / older children may be held to SoC required of reasonable adult
  • air gun / 16 yr old expected to meet SoC for reasonable adult (Gorely v Codd [1967])
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