Lecture notes
Class notes LAW 9084
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These are my compiled class notes for CIE Tort Law. I’ve covered a lot of torts which were part of my syllabus.
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QuestionThe reasonable man test ensures a consistent approach to breach of duty in negligence.
Assess the validity of the statement above.
Negligence is a breach of a duty of care which causes harm to a claimant. In order to establish
negligence, the claimant must prove that the defendant has fallen below the standard of
behaviour expected of a reasonable person( Blyth v Proprietors of the Birmingham). The test for
breach of duty is an objective test whereby the defendant is compared to the ‘man on the street’
( Hall v Brooklands). By eliminating subjective considerations, the reasonable man test seeks to
achieve consistency and certainty within the tort of negligence. However, various cases
particularly in relation to the standard expected of children and professionals illustrate the
difficulty in ensuring consistent outcomes.
The ‘reasonable man’ test and the objective approach can be illustrated through the case of
Nettleship v Weston where a learner driver was judged according to the standard of a fully
competent driver. Although the outcome in this case is perceived as harsh, it is justified keeping
in mind the aim of compensation in tort law for the claimant. For practical reasons of practicality,
it is important to impose the same standard of care upon all road users. The harshness of the
objective approach may be mitigated by the fact that the duty does not include the requirement
of preventing against all risks-the reasonable person is only required to take reasonable care. In
Simmonds v Isle of Wight Council, a school was judged according to the standard of a
reasonable school and it was acknowledged that it was not possible for a school to make their
playing field absolutely hazard free. The importance of a reasonable standard was reiterated in
Cole v Davis GIlbert where Scott Baker LJ expressed the concern that ‘If the courts were to set
a higher standard of care than what is reasonable, the consequences would be quickly felt.’
Thus, the reasonable man test not only ensures a consistency within the tort of negligence, it
also upholds the policy of preventing floodgates and unnecessary litigation.
The standard of behaviour expected of a reasonable person depends on a series of factors
including the foreseeability of the risk. The defendant will usually have breached their duty of
care if they take a risk which is known and foreseeable. This factor helped the defendant
escape liability in Roe v Minister of Health since the dangers of storing ampoules of anaesthetic
in disinfectant was not known at that time. Whilst this was a decision in favour of the defendant,
it is difficult to apply in practice since procedures and techniques, particularly in the medical
area, are constantly evolving. In addition, the court looks into the size of the risk which has to be
balanced against the cost and practicality of protection from it. In Bolton v Stone, the defendant
was not liable for failing to erect a dome over a cricket ground as this was seen as
disproportionate to the risk of a ball injuring a person outside the ground. Given that an accident
such as this had happened only 6 times in 30 years, it was not something the cricket club could
reasonably be expected to take precautions against.. Similarly, the court also looks at the
extent and magnitude of the risk such as in Paris v Stepney Borough council. Even though the
chances of one becoming blind during welding were small, the potential consequences for a
partially blind claimant were grave. The fact that this consequence could easily be prevented if
the defendants provided goggles led the court to apply the egg shell skull rule and allow liability
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