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Negligence and establishing breach of a duty of care
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Lecture notes about negligence and how duty of care is established and breached
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Tort LectureWeek 3
ELEMENTS OF A NEGLIGENCE CLAIM
Duty of Care + Breach of Duty + Causation in Law and Causation in Fact
BREACH OF DUTY: 2 STAGES
➔ What is the standard of care expected of the defendant - how should they have acted?
➔ Has the defendant fallen below that standard of care - how did they act?
REASONABLENESS
➔ The general standard of care is not one of perfection
➔ It is an objective standard of reasonableness
➔ ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee which would be likely to injure your neighbour’ Lord Atkin in Donoghue
BLYTH V BIRMINGHAM WATERWORKS (1856) 11 EX CH 781
➔ ‘Negligence is the omission to do something which the reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs, which do, or doing
something which a prudent and reasonable man would not do’ Alderson B at 784
➔ Advances the concept of the reasonable man
KEY CASE
➔ Sets standard of reasonable man
➔ The courts held that it was unreasonable for Birmingham Waterworks to be held liable due
to being unable to foresee the weather
WHO IS THE REASONABLE MAN
➔ Vague term with no clear definition
➔ ‘[M]an on the Clapham Omnibus’ - Hall v Brooklands Auto-Racing Club [1933]
➔ ‘Traveller on the London Underground’ - McFarlane v Tayside Health Board [1999]
➔ Capable of making mistakes, open to human error
PROBLEMS WITH THE REASONABLE MAN
➔ Reasonable man is inherently gendered - better phrased as a ‘reasonable person’
➔ Feminist critiques - does reasonableness embody a male perspective?
➔ Reasonable person - still ill-defined; young or old? Race? Religion?
➔ Inherently exclusionary
AN OBJECTIVE STANDARD
➔ In theory, the reasonable person standard does not take account of personal idiosyncrasies
➔ Not ‘what could this particular defendant have done?’ but rather ‘what level of care and
skill did the activity the defendant was undertaking require?’
➔ Experience, skill, etc should not matter
NETTLESHIP V WESTON [1971] 2 QB 691 (CA)
➔ What is the standard of care for a learner driver?
➔ Held - experienced, skilled and careful driver
➔ Essentially holding a learner driver to the same standard as all drivers
➔ Reasons
, ◆ Variable standard
◆ Moral blame
◆ Insurance
➔ Note powerful dissent b Salmon LJ
➔ Somebody suffered and because insurance companies exist, we are going to allow liability
to come into play so that we can correct that wrong.
OTHER DRIVING CASES
➔ Birch v Paulson [2012] EWCA Civ 487
➔ Roberts v Ramsbottom [1980] 1 All ER 7 (CA) & Mansfield v Weetabix [1998] 1 WLR 1263
(CA)
◆ Both cases involved a driver suffering from some sort of health condition which
affected their driving
◆ Resulted in them causing an accident
● In one case, it was held that the condition was something that they should
have been aware of and, because of that, they had fallen below the
standard of care
● In Mansfield and Weetabix, it was determined that the condition was
something the defendant could not have been aware of and so had not
fallen below the standard of care
➔ Brown v Paterson [2010] EWCA Civ 185
➔ Marshall v Osmond [1983] QB 1034 (CA)
➔ Standard of care is applied in slightly different ways
CHILDREN
➔ Assessed differently to adults
➔ Mullin v Richards [1998] 1 All ER 920 (CA)
◆ 15 year old girls fighting with plastic rules
◆ One of the rulers splintered and went into one of the girls’ eyes
◆ They sued in negligence
➔ Orchard v Lee [2009] EWCA Civ 295
◆ 13 year old boy ran into a teaching assistant whilst playing tag
◆ Serious injury sustained
➔ What is expected of a reasonable child of that age?
➔ It was held that children had acted reasonable in both cases
PROFESSIONALS
➔ What happens if you claim to be especially skilled?
➔ A reasonable person is not expected to have the skill of a trained professional, such as a
doctor or an electrician, unless they have professed to have such a skill
➔ If so, then the law expects to act as a reasonable member of that profession - reasonable
doctor, etc.
BOLAM V FRIERN HOSPITAL [1957] 1 WLR 582 (QB)
➔ ‘a man need not possess the highest expert skill.,..it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising in that particular art…[and acts] in
accordance with a practice accepted as proper by a responsible body of medical men
skilled in that particular art.’ Mcnair J at 586
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