Negligence - Breach of Duty
Introduction – The Reasonable Person Test
Breach of Duty of Care: A Question of Nomenclature
• The Reasonable Man ‘test’ (don’t write this in essay, write the reasonable person).
o The Reasonable Woman??
o The Reasonable Person – use this terminology.
• Conahan and Mansell, The Wrongs of Tort
‘…the feminist critique of the reasonable man echoes a more widespread preoccupation in feminist scholarship
with the concept of reason itself…at bottom, feminist debate about the reasonableness standard in tort law can be
located within a broader philosophical enquiry into the possibility and desirability of invoking universal
standards…’
Reasonable Person: Blyth v Birmingham Waterworks Co (1856)
Facts:
• D was a provider of water; they were fixing a pipe so that it would work in all temperatures.
• During a cold winter, the pipes froze and flooded the C’s house.
• C claimed negligence on D’s part.
Held:
• Was D’s conduct that of a reasonable person conducting ordinary behaviour? Did they satisfy the objective
standard of care?
• Alderson B:
‘Negligence is the omission to something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man
would not do.’
Objective Standard of Care
Defining the Objective Standard of Care:
Key Authorities:
Healthcare at Home Ltd v The Common Services Agency (2014) - definition
Facts:
• Not important, a contract case.
Held:
• Lord Reed:
“The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during
the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member
of society…the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and
informed observer…[these] are legal fictions. They belong to an intellectual tradition of defining a legal standard
by reference to a hypothetical person…”
o The characteristics appointed to a reasonable person, are fictious.
‘The behaviour of the reasonable man is not established by the evidence of witness, but by the application of a
legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its
application of the standard of the reasonable man in any particular case; but it is then for the court to determine
the outcome, in those circumstances, of applying that impersonal standard.’
Nettleship v Weston – objective standard for learner drivers
Facts:
• The defendant, Weston was a learner driver. She was taking lessons from a friend, Nettleship, the claimant.
Nettleship checked that Weston’s insurance covered her for passengers before agreeing to go out with her.
• On one of the lessons Weston turned a bend, Nettleship told her to straighten the wheel, but Weston panicked
and failed to straighten the wheel. She approached the pavement and Nettleship grabbed the handbrake and tried
to straighten the wheel, but it was too late. She mounted the pavement and hit a lamp post.
• Nettleship fractured his knee.
Claim:
, • Mr Nettleship brought an action for damages against Mrs Weston in the tort of negligence, arguing that she
breached her duty to take reasonable care towards him.
• Weston (D) argued 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; Nettleship (C) had
voluntarily accepted the risk.
Held:
• The Court of Appeal made clear that a learner driver must be judged according to the same standard as all
drivers. Weston was therefore not entitled to argue that a lower standard should be expected of her because she
was learning to drive.
• Lord Denning - ‘I have treated Mrs. W as the driver who was herself in control of the car…she is plainly liable…for
the injury done to Mr N. She owed a duty of care to each. The standard of care is…measured objectively by the
care to be expected of an experienced skilled and careful driver.’
• A learner driver is expected to meet the ‘same standard as a reasonable qualified competent driver’.
• Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to
compensation.
• Nettleship’s damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect
the degree to which he was also at fault.
• Lord Denning:
‘It is no answer for him to say: ‘I was a learner driver under instruction. I was doing my best and could not help it.’
The Civil law permits no such excuse. It requires of him the same standard of care as of any other driver…The
learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a
manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment,
has good eyesight and hearing, and free from infirmary.’
o An objective standard for drivers, reinforced by Lord denning.
Darnley v Croydon Health Services NHS Trust (2018) – objective standard for hospital receptionists
• Lord Lloyd-Jones:
‘…it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as
to the likely availability of medical assistance. ..The standard required is that of an averagely competent and well-
informed person performing the function of a receptionist at a department providing emergency medical care…In
light of that finding I have no doubt that the provision of such misleading information by a receptionist as to the
time within which medical assistance might be available was negligent.’
o A reasonably competent receptionist at a hospital would not have made the mistakes made here. Thus, the
receptionist here fell below that standard.
The Objective Standard of Care:
• Recall, the standard can be adjusted depending on:
o Age – ‘the question is whether a reasonable 13-year-old boy, in the situation that SL was in, would have
anticipated that some significant personal injury would result from his actions in playing tag as he did…’ –
Aiken LJ in Orchard v Lee
o Disability – ‘In my judgment, the standard of care the [the driver] was obliged to show in these circumstances
was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering
from a condition that impairs his ability to drive.’ – Leggatt LJ in Mansfield v Weetabix
Approaching the Breach Assessment:
• Two starting questions:
1. How should the D have acted in the particular circumstances? Apply reasonable person test.
2. Looking at the facts, how did the D actually behave/act in the particular circumstances? Do these
actions/omissions constitutive a breach, based on Q1?
Factors to Determine Objective Standard of Care:
• Timing
• Probability of Harm
• Gravity of Harm
• Cost of Precautions
• Context
• Utility of D’s Conduct
• Exceptions (because we know there always are…)!
o Only apply a few of these, not all to question.