Unit 2 notes
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Unit 2 – Reading The concept of the duty of care is central to the tort of negligence. It is one of three elements in the tort of negligence—the first ‘hurdle’ if you like—that must be established in order for a claim to be successful. Carelessness alone does not give rise to liability. The defendant must not only be careless but also be in a relationship to the claimant where their carelessness carries legal consequences. If the defendant does not owe a duty of care to the claimant, then the defendant will not be liable regardless of how carelessly they acted and how much loss they caused to the claimant, and there is no need to address the other elements of a negligence claim—that is breach, causation and remoteness. Moreover, the duty of care must be owed in respect of the particular type of harm (or injury) suffered—a defendant may owe the claimant a duty of care in respect of one type of loss (e.g. bodily injury) but not in respect of another (e.g. economic loss).It is usually clear when a duty of care is owed. We know, for example, that an employer owes its employees a duty of care not to cause them foreseeable physical and psychiatric p. 59↵injury at work; that a driver owes a similar duty to other road users, and others in their vicinity; and that a doctor owes a duty to his patients (in both treating and, increasingly, advising them). In these, and many other cases, a duty of care is established by clear precedent: the courts have long recognised duties of care in these situations. Accordingly, in a road traffic accident case the key issue is not likely to be whether the defendant owed the claimant a duty of care, but rather whether they have breached this duty by falling below the standard of care expected in all the circumstances of the case.1On occasion, however, cases arise where the question of whether a duty of care exists is not answered by precedent. In these ‘novel’ cases, the question for the court is whether the law shouldrecognise a duty of care on such facts. To answer this question, the courts have made numerous attempts to identify a general test which can be used to identify when duties of care will arise. However, as we shall see, none of these attempts have been altogether successful.Nonetheless, to repeat, this uncertainty about what general test or approach courts should take when faced with novel cases does not mean that there is significant uncertainty about when duties of care arise. Most cases are not novel but are covered by precedent. Accordingly, when considering whether a duty of care is owed, the starting point is alwaysto look to existing precedent. If the cases give a clear answer one way or the other—that is, if they indicate that a duty is or is not owed—then that is the end of the matter. It is only in those rare, but nonetheless significant, cases where the precedents give no clear answer that the courts need to resort to a more general test or approach.One thing which follows from what we have said already is that there is no universal duty to take care not to harm or injure each other. The law does not alwaysrequire us to show reasonable care for those who may be harmed—however foreseeably—by our conduct. Indeed, the duty of care concept is seen by many as a sort of control device, which the courts employ to limitthe scope of negligence liability.[W]hereas Lord Atkin seems to have put forward the neighbour principle as a way of expandingthe scope of liability for negligence, the duty of care concept is most commonly used in modern cases as a means of justifying refusalto impose liability. (emphasis added)2Notably, there are a number of situations where the law either denies a duty of care outright or makes establishing such a duty more onerous for claimants.3These relate to particular types of harm (e.g. where the defendant’s actions cause psychiatric injury or economic loss), how the harm is
suffered (e.g. where the claimant’s loss or injury has been caused by the acts of a third party or through an omission rather than a positive act) and who the defendant is (e.g. where the defendant is a public body—such as a local authority, the police or other emergency services). This, of course, prompts a further question as to why the courts might wish to deny a duty of care in such cases.There are a number of reasons why the courts might be reluctant to impose a duty of care. These include a wish to avoid imposing so-called ‘crushing’ liability on a particular individual or class of defendants—that is, ‘liability in an indeterminate amount for an p. 60↵indeterminate time to an indeterminate class’ (Ultramares Corporationv Touche, Niven & Co[1931]). A related wish may also be to prevent a ‘flood’ of claims—either in relation to one specific event or, more generally, in relation to a particular type of injury—which may in turn clog up or slow down the tort system as a mechanism for compensation. The courts may also wish to seek to avoid the more negative aspects of deterrence—that is, the danger of ‘overkill’—whereby beneficial yet ‘risky’ activities are restricted due to the over-self-regulation of would-be defendants. Finally, the courts may recognise that in some circumstances there is nothing wrong with the sort of harm the defendant has caused—that is,that it is sometimes entirely reasonable to act in ways that leave others worse off.4For example, failing a student’s exam paper will inevitably leave them worse off both in terms of their future employment prospects as well as their current mental state. However, the examiner (assuming the paper is not of a sufficient standard to pass) is under no duty to prevent this from happening by not failing the student.5Pause for reflectionThere are differing views as to the role of the duty of care.Peter Cane and James Goudkamp argue that the main function of the duty of care element in the tort of negligence is to:define the boundaries of liability for damage caused by negligent conduct by reference to what are commonly called ‘policy considerations’ … To say that a person owes a duty of care means (and means only) that the person will be liable for causing damage by negligence in that situation.6Nicholas McBride disagrees. He argues that tort law’s regulatory function—that is, the extent to which tort law tells people how they oughtto behave—is at least asimportant. So viewed, it is wrong to say the imposition of a duty of care ‘means only’ that the defendant will be liable for carelessly harming the claimant. Rather we should take the notion of a duty of care seriously—it requires and directs a defendant to act with reasonable care.7This distinction, described by McBride as that between those who adopt a ‘cynical’ as opposed to ‘idealist’ view of the tort of negligence, is an important one. On one view tort law p. 61↵is about attributing or shifting losses, and hence the key question is: Do we want to impose liability in these circumstances, on this defendant, for this injury? On this basis the purpose of the duty of care inquiry is simply to weigh up the pros and cons of requiring the defendant to bear the claimant’s losses. By contrast, the idealist view suggests that tort law is concerned primarily with telling people how they may and may not act. So, to impose a duty of care on a defendant is not simply to say that they will be liable if they carelessly injure someone, but that they must actually ‘take care’.Keep this distinction in mind as you read more about the tort of negligence and, particularly, when reading Chapters4to 7, which deal with the types of claim in which the courts have struggled with whether and when to find a duty of care. To what extent, if any, can the distinction between the
‘cynical’ and ‘idealist’ views on negligence provide an explanation for some of the courts’ more controversial decisions in relation to establishing a duty of care?3.2 Establishing a duty of careAs noted in section3.1, there has been some uncertainty about what general test or approach courtsshould take when faced with so-called novel cases, which is to say those rare, but important, cases inwhich there is no existing precedent on whether a duty of care arises. In such cases the court needs to determine whether a duty of care should be recognised. Over the years the courts have adopted various approaches. Given that to a large extent these build on and respond to each other it is worth looking at these in turn.3.2.1 From Donoghueto AnnsThe starting point in any consideration of the concept of a duty of care is Donoghuev Stevenson[1932]. As discussed in Chapter2, the House of Lords set down a single, general test which could be applied in all cases to answer the question as to whether a duty was owed—Lord Atkin’s ‘neighbour principle’:You must take reasonable care to avoid acts or omissions which you can reasonably foresee would belikely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. (at 580)The basic test here is that, for a duty of care to arise, the claimant must fall within a class of individuals put at foreseeable riskby the defendant’s action. It follows that duties of care are claimant-specific: the defendant does not owe a duty of care to the world at large. An example of this point is Haleyv London Electricity Board[1965]. In this case, the claimant, who was blind, tripped over a hammer which had been placed on the pavement by the defendant to prevent pedestrians from walking along the pavement as they carried out their work. As a result of the fall the claimant became almost totally deaf. The House of Lords, finding for the claimant, held that the question of whether harm p. 62↵was reasonably foreseeable needed to factor in the characteristics of all those who might reasonably be expected to walk along the pavement—including blind pedestrians:In deciding what is reasonably foreseeable one must have regard to common knowledge … No doubt there are many places open to the public where for one reason or another one would be surprised tosee a blind person walking alone, but a city pavement is not one of them. (Lord Reid at 791)8For some, Lord Atkin’s neighbourhood principle is ‘extraordinarily empty’.9It simply prompts the question: what is, or ought to be, reasonably foreseeable? This is something which may ultimately depend on the imagination of the individual judge; what one judge may believe to be reasonably foreseeable, another may consider unusual and so on. Yet this requirement that harm be reasonably foreseeable before a duty of care is recognised has been the one constant in a period where much ofthe law of negligence has been in flux. And, while determining what harms are reasonablyforeseeable is a question on which different people will sometimes come to different conclusions, the law cannot sensibly expect us to take care in respect of risks we could not reasonably have anticipated.Pause for reflection
One constant in the quest for a general test for establishing duties of care is the requirement of foreseeability—that is, the claimant must be said to fall into a particular class of people in relationto whom it is reasonably foreseeable that the defendant’s failure to take care could cause them damage. However, as we shall see, foreseeability also crops up as a requirement or relevant factor in other elements of the tort of negligence.To recap, establishing a claim in negligence requires the claimant to prove not just that the defendantowed them a duty of care, but also that the defendant breached that duty, that the breach caused the claimant a loss and that this loss is not too remote. When we come to look at breach, in Chapter8, we shall see that one of the key factors in determining whether the defendant did indeed act reasonably is the likelihood and gravity of the harm that could reasonably have been foreseen—so, for instance, the greater the likelihood of harm, the more care we expect the defendant to take to prevent it. Moreover, when determining whether the loss suffered by the claimant is too remote, we again turn to reasonable foreseeability—a loss is too remote if it was not reasonably foreseeable that a loss of that kind might follow from the defendant’s breach (Overseas Tankship (UK) Ltdv Morts Dock and Engineering Co (The Wagon Mound) (No 1)[1961]).10p. 63↵This all appears rather confusing. If the claimant’s loss was not reasonably foreseeable, then no duty of care can arise and their claim will fail before we get to questions of breach, causation and remoteness. By contrast, if a court has held that harm was reasonably foreseeable when looking at whether a duty arose, then it seems unnecessary to re-inquire into foreseeability when looking at breach and remoteness since that issue has already been addressed at the duty stage. To put much the same point another way, if it is held that the claimant’s loss was nota reasonably foreseeable consequence of the defendant’s carelessness, then it seems we can deny their claim on a variety of grounds: we could say that no duty was owed, that the defendant was not in breach or that the claimant’s loss was too remote.So, not only does it seem as though we are asking the same question two or three times but this alsoappears to muddy the relationship between the supposedly distinct elements of a negligence claim. The same point has on occasion been made by the courts. For instance in Lambv Camden London Borough Council[1981] Lord Denning MR had this to say:The truth is that all these three, duty, remoteness and causation, are all devices by which the courts limit the range of liability for negligence … As I have said … ‘it is not every consequence of a wrongful act which is the subject of compensation’. The law has to draw a line somewhere. Sometimes it is done by limiting the range of persons to whom a duty is owed. Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide. (at 636)The best way to make sense of this all is to understand that at each stage—duty, breach, remoteness—we are, or should be, asking a slightly different question in relation to foreseeability. So, at the dutystage, we are asking whether harm of some broad variety—personal injury, psychiatric harm, property damage, pure economic loss, etc—was a reasonably foreseeable consequence of the defendant’s carelessness. If a duty is established, we move on to breach. This involves asking whether the foreseeable harm was sufficiently grave or likely that the defendant should have done more than they did to avoid it happening. As such, the inquiry into foreseeability here is a little more detailed or focused—we are asking not only ‘Was harm foreseeable?’ but ‘How likely was it that harm might be caused?’ and ‘How serious was the harm that the defendant could reasonably have foreseen?’ Finally, when addressing remoteness, we are looking at the foreseeability of the specific
harms that the claimant did in fact suffer. So, while at the duty stage we ask whether, for instance, physical harm, as broadly defined, was foreseeable, when turning to remoteness we look at the precise injury suffered by the claimant (and sometimes, too, the way in which they were injured), and we ask whether this was the type ofphysical harm that could reasonably have been foreseen (see e.g. Tremainv Pike[1969] and Hughesv Lord Advocate[1963], although compare Pagev Smith[1996]).Lord Atkin’s neighbourhood principle from Donoghuewas subsequently restated and refined in the dictum of Lord Wilberforce in Annsv Merton London Borough Council[1978]:… the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient p. 64↵relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. (at 751–2)So, on this reformulation of the test, the defendant owes the claimant a duty to take reasonable care (provided that it was reasonably foreseeablethat a failure to take reasonable care by the defendant would cause damage to the claimant) unlessthere is some policy reason why, nonetheless, no duty should be held to be owed. This prompted Lord Goff in Smithv Littlewoods[1987] to acknowledge ‘the broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not’ (at 280).Under the Annstest, the only positive reason needed to support the recognition of a duty of care was that harm to the claimant was indeed reasonably foreseeable. This first stage was pretty easy to satisfy—almost everything is foreseeable if you think about it long enough. Now, the second stage meant that courts were not compelled to find duties of care simply on account of the harm being reasonably foreseeable. However, the way the test was formulated created a sort of presumption that, ifharm was reasonably foreseeable, then a duty of care was owed. As such, a defendant seeking to argue that he owed no duty faced an uphill battle, since they had to convince the court why they, exceptionally, should be permitted to cause careless harm.The end result was an unprecedented, and increasingly unpopular, expansion of the tort of negligence in the late 1970s and early 1980s during which the courts seemed reluctant to refuse claims of any vaguely sympathetic claimant who came before them (see e.g. Roskill’s leading opinion in Junior Booksv Veitchi[1983]). Accordingly, Lord Wilberforce’s two-stage test soon fell into disfavour. It was rejected in Yuen Kun-yeuv Attorney General of Hong Kong[1987] and Annsitself was subsequently overruled by Murphyv Brentwood District Council[1991].11CounterpointThough many modern accounts of negligence fail to acknowledge this, the decision in Annswas not universally derided. Indeed, in Ravenscroftv Rederiaktiebolaget Transatlantic[1991] (decided after Annswas overruled in Murphy) Ward J had this to say:As I have tried to navigate my fragile craft to judgment, I have become aware that it is a tidal sea which flows as causes of action are extended and then ebbs as limitations are placed upon them. I
can only console myself that if I am cast up among the flotsam and jetsam at the high water mark on the beach, I shall lie, I hope unnoticed but among such battered treasures as Annsv Merton London Borough Council. (at 76)p. 65↵Moreover, it is far from clear that the test in Annsnecessitatedany expansion of liability. It may be that it was a victim of association—a casualty of the backlash against an increasing number of decisions (e.g. McLoughlinv O’Brian[1982]; Home Officev Dorset Yacht Co[1970]; even the decision in Annsitself) which appeared to threaten the principles of individual freedom and responsibility at a time when these were high on the political and governmental agenda.12What do you think led the courts to the conclusion that the potential for liability had become too widespread? Think, in particular, about the so-called ‘problematic’ duty situations in relation to omissions, pure economic loss, public authorities, psychiatric harm and so on.For pointers on how to answer the questions posed in this ‘pause for reflection’ go to the online resources.3.2.2 Caparo Industriesv DickmanIn Caparo Industries plcv Dickman[1990]13the House of Lords sought to move away from the position of Donoghueand Annswhereby foreseeability of damage was enough to raise a prima facie duty of care, which would be negated only if there were public policy considerations which militated against such a duty. But, more than that, the court cast doubt on the broader idea which motivated Lord Atkin’s judgment in Donoghue: that there must be some general test which can determine when duties of care are owed.The more difficult question was, once the tests in Donoghueand Annswere rejected, what was to beput in their place. In setting these approaches aside, Lord Bridge suggested:… in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that thesituation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other. (at 617)Later courts came to treat this passage as setting down a new ‘three-stage test’ which must be applied to determine whether a duty of care arises. On this understanding, to know whether the defendant owes the claimant a duty of care we need to answer three questions: (1) Was it reasonably foreseeable that the defendant’s failure to take care could cause damage to the claimant?(2) Was there a relationship of proximity between the claimant and the defendant? and (3) Is it fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant? Only if the answer to all three questions is ‘yes’ would a duty of care be found.The first stage here is the familiar question of whether the claimant fell within a class of individuals put at foreseeable riskby the defendant’s action. The second and third stages, however, marked a departure from the Annstest. Though the language of p. 66↵‘proximity’ was used in Annsand indeed in Donoghue, it appears that Lord Wilberforce, and (less clearly) Lord Atkin, did not intend the term to add anything to the notion of reasonable foreseeability. In other words, to say that there was ‘proximity’ between the claimant and defendant was to say no more than that it was reasonably foreseeable that the defendant’s carelessness could cause the claimant harm. As such, ‘proximity’ did not describe a hurdle or requirement additional to the requirement of reasonable
foreseeability. Caparochanged this. By employing ‘proximity’ as a second, additional, element to the test for establishing the existence of a duty of care, the House of Lords must have meant something more than simple reasonable foreseeability of harm. The difficulty was in identifying what this alternative understanding of proximity was and hence how to determine when it was present.Clearly proximity does not describe simple physical closeness—a defendant can owe a duty of care toa claimant who is many miles away (indeed in Donoghueitself the claimant and defendant were not close in space and time). Rather proximity is perhaps better understood, to use Alistair Mullis and Ken Oliphant’s expression, as a ‘legal term of art’;14a generic name for the more specific tests through which the existence of a duty of care is established in particular cases.15The fact that ‘proximity’ identified no single, definable idea or test was indeed admitted by the court in Caparo. AsLord Oliver noted, ‘proximity’ is a ‘convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists’ (at 632). Similarly, in Stovinv Wise[1996]Lord Nicholls stated:[The Caparo] formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and reasonableness, and capable of being identified by some other criteria. This is not so. Proximity is a slippery word. Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties. (at 932)As such, the proximity requirement tells us that, before a duty of care can arise, a certain type of relationship or connection must exist between the parties. However, importantly, and as Lord Oliver’squote reveals, Caparoitself tells us very little about what precise relationship or connection amountsto a relationship of proximity on any given set of facts. Donoghueand Annsboth suggested that the only connection or relationship that needed to exist between the parties was that it was reasonably foreseeable that the claimant might be harmed by the defendant’s carelessness. Caparotells us that this is not true (since otherwise this second stage of the Caparo‘test’ would add nothing to the first) and that something more is needed. However, it does not say what this ‘something more’ is.The final stage of the Caparo‘test’—that is, whether it is fair, just and reasonableto find that the defendant owed the claimant a duty to take reasonable care not to cause them damage—returns, once again, to notions of policy. In so doing, it has been argued p. 67↵that it leaves the courts with an inevitable ‘residual discretion as to whether or not a duty of care should be recognised’.16Traditionally, judges have sought to play down this aspect of their role (especially during the period of retreat following Anns). However, more recently, they have been more willing toengage in frank discussion of the various policy factors which weigh for and against the imposition of a duty of care. Indeed, in Michaelv Chief Constable of South Wales Police[2015]Lord Kerr (in dissent) appeared to suggest not only that a decision whether or not to impose a duty of care was necessarily informed by ‘preponderant policy considerations’ but that these might change over time:As to what is ‘fair, just and reasonable’, Lord Browne-Wilkinson in Barrettv Enfield London Borough Council[2001]2 AC 550, explained:In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as
against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (at 559)This passage clearly contemplates that, in deciding what is ‘fair, just and reasonable’, courts are called on to make judgments that are informed by what they consider to be preponderant policy considerations. Some assessment has to be made of what a judge considers the public interest to be;what detriment would be caused to that interest if liability were held to exist; and what harm would be done to claimants if they are denied a remedy for the loss that they have suffered. These calculations are not conducted according to fixed principle. They will frequently, if not indeed usually,be made without empirical evidence. For the most part, they will be instinctual reactions to any given set of circumstances. … It is, I believe, important to be alive to the true nature of these decisions, especially when one comes to consider the precedent value of earlier cases in which such judgments have been made. A decision based on what is considered to be correct legal principle cannot be lightly set aside in subsequent cases where the same legal principle is in play. By contrast, a decision which is not the product of, in the words of Lord Oliver, ‘any logical process of analogical deduction’ holds less sway, particularly if it does not accord with what the subsequent decision-maker considers to be the correct instinctive reaction to contemporaneous standards and conditions.Put bluntly, what one group of judges felt was the correct policy answer in 2009 should not bind another group of judges, even as little as five years later. (at [159]–[161])Pause for reflectionThe test or approach Caparostands for has, however, been a matter of some controversy. As we have noted, it was commonly thought that it set down a new test—a three-stage test,17requiring: (1) reasonable foreseeabilityof harm; (2) a relationship of proximitybetween claimant p. 68↵and defendant; and (3) that recognising a duty of care would be fair, just and reasonable—which was to be used in novel cases to determine if a duty of care was owed.The main difficulty with Caparo, on this view, is that it tells us remarkably little about when a duty of care will arise or even how courts should go about determining when such duties arise. Yet this is thevery thing a general test for establishing duties of care should do. However, what is striking when onereads the judgments in Caparois that the House of Lords made clear that it was notintending to set down a test that could be used by courts in future cases to provide concrete answers to whether a duty of care arose on a given set of facts. On the contrary, the House of Lords in Caparoclearly took the view that it was impossible to find anysingle test which, in practice, could be used to identify those situations in which a duty of care will be owed. Lord Oliver put it thus:I think that it has to be recognised that to search for any single formula which will serve as a general test of liability is to pursue a will-o’-the wisp. The fact is that once one discards, as it is now clear one must, the concept of foreseeability of harm as the single exclusive test, even a prima facietest, of theexistence of the duty of care, the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law but merely to bedevil its development in a way which corresponds with practicality and common sense. (at 632)Moreover, not only did the House of Lords reject the possibility of formulating any single, practicable test, they also went on to deny the utility of the very concepts of ‘proximity’ and ‘fairness, justice andreasonableness’ that are employed in the so-called three-stage test:[T]he concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests,but amount in effect to little more than convenient labels to attach to the features of different
specific situations in which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of a given scope. (Lord Bridge at 618)Accordingly, while many lawyers came to view Caparoas setting down a new test which they must apply when working out when duties of care arise, this was not just a misreading of the judgments in Caparobut indeed the very opposite of what the court had intended. The Supreme Court has, in recent years, sought to resurrect and restate the true message of Caparo. The point was emphasised by Lord Toulson in Michaelv Chief Constable of Wales[2015]when he noted that ‘[p]aradoxically, … Lord Bridge’s speech has sometimes come to be treated as a blueprint for deciding cases, despite thepains which the author took to make clear that it was not intended to be any such thing’ (at [106]). And again in Robinsonv Chief Constable of West Yorkshire[2018]Lord Reed noted:18The proposition that there is a Caparotest which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken. As Lord Toulson JSC pointed out in his landmark judgment in Michaelv Chief Constable p. 69↵of Wales[2015]… that understanding of the case mistakes the whole point of the Caparocase, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities. (at [21])Robinsonis clear that we should not think of Caparoas setting down a test which can tell us when duties of care are owed. But what does Caparohave to say to courts faced with novel cases, when the existing precedents do not give an answer to the question of whether a duty of care is owed? One thing Caparodoes is to change the starting point from which decisions on whether the defendant owes the claimant a duty to take reasonable care not to cause them injury are made. For Lord Wilberforce in Anns, showing that it was reasonably foreseeable that the defendant’s carelessness would harm the claimant was enough to establish a ‘prima facie’ duty of care. As we have seen, this effectively adopted a presumption that where harm was reasonably foreseeable, a duty of care would be owed. Of course, this presumption could be rebutted. Accordingly, the second stage of the Annstest asked whether there were policy considerations which nonetheless required the court to deny a duty of care. But this way of structuring the inquiry was significant. The test suggested that, all else being equal, a duty of care would be owed wherever it was reasonably foreseeable that the defendant’s carelessness could harm the claimant and it was only in those (apparently) exceptional cases where policy considerations pointing againstthe imposition of a duty were sufficiently weighty, that a duty of care would nonetheless be denied. Caparorejects this view. Instead the court must weigh up all the applicable reasons and arguments for and against recognising a duty of care. A duty of care will be found only if the court considers that, on balance, the combined reasons in favour of a duty of care are stronger than the combined reasons against, with no presumption that a duty will be owed when harm is foreseeable.Pause for reflectionAs we have noted, the House of Lords in Caparowas determined to effect a shift away from the position of Donoghueand Annswhereby foreseeability of damage was enough to raise a prima facie duty of care, which would be negated only if there were public policy considerations which militated against such a duty. Do you think this shift has gone too far? Think about Caparoand the cases that have followed it (discussed in the following chapters). Are the courts now paying too little attention to the principle that carelessly caused injuries should be compensated? After all, as Lord Browne-
Wilkinson reminded us, in X (Minors)v p. 70↵Bedfordshire County Council, we should not lose sight of the compensatory purposes of the tort of negligence:the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter-considerations are required to override that policy. (at 749)193.2.3 Robinsonand the incremental approachThe principal steer Caparogives to the courts came in its approval of a dictum of Brennan J in the Australian case of Sutherland Shire Councilv Heyman[1985]: ‘It is preferable, in my view, that the lawshould develop novel categories of negligence incrementally and by analogy with established categories’ (at 481). This describes what has become known as the incremental approach. According to this approach, the courts should identify duties of care not by seeking a high-level, universal test of the kind the House of Lords attempted to formulate in Donoghueand Anns. Instead, their focus should be on the existing case law and the factual circumstances in which duties of care have alreadybeen found, and to work outwards from them. As Lord Bridge noted, this heralds a return to the pre-Donoghueapproach and ‘the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes’ (Caparoat 618).The suggestion that we should recognise duties of care in situations identical or analogous to those where the courts have recognised a duty of care previously (and that we should reject duties of care in situations where the courts have previously denied their existence) is clearly sensible and is hardly revolutionary. This is, one might say, just ordinary common law reasoning. The problem with this approach is what might be thought to be its implication: that, where no analogy can be found—that is, where there is no previously decided case analogous to the case at hand—a duty of care will be denied since the recognition of a duty of care cannot be understood as an incremental development of the law from existing, analogous authorities. In other words, if the law is to develop incrementally,we can onlyrecognise duties of care in situations analogous to those where a duty of care has alreadybeen recognised.But, if this is true, it then means that the outcome of cases depends not upon legal principle and the substantive merits of the case but upon the accidents of legal history—that is, on whether you are fortunate enough that an analogous case has already been decided by the courts. If we take the incremental approach seriously, where a party is unfortunate enough to suffer an injury in a truly novel way, so that no case similar to theirs has been brought to court before, then their claim will fail not because it is unmeritorious but for p. 71↵the simple (and highly unsatisfactory) reason that they are the first person to bring such a claim. Indeed, it is just this type of arbitrary and unfair result that the majority of the House of Lords in Donoghuerejected. The incremental approach appears to invite us to say that the minority in that case were right after all.20Perhaps unsurprisingly, the courts have shown little enthusiasm for this approach, or at least the implication that reallynovel cases will lose out by reason of their novelty alone. For instance, in MarcRich & Cov Bishop Rock Marine Co Ltd[1996] (also known as The Nicholas H) the House of Lords, faced with a novel type of negligence claim, effectively sidelined the incremental by analogy approach on the basis that, if there had been no analogous cases previously decided, then the past cases could offer no guidance either way as to whether a duty should be held to exist. Instead, the court decided the case pragmatically by analysing the reasons for and against the recognition of a
duty and deciding whether on balance a duty ought to be recognised (albeit while using the languageof fairness, justice and reasonableness).More recently the Supreme Court has endorsed what might be considered a refined version of the incremental approach. We saw already in the earlier extract from Robinsonv Chief Constable of West Yorkshire Policethat Lord Reed held that it was the incremental approach, not the supposed three-stage test, which Caparoshould be understood to stand for and it is this approach which courts should employ when dealing with novel claims (at [25]). But, in so doing, he did not endorse what we described as the apparent implication of this approach: that truly novel claims fail simply by reason of their novelty. As he continued:Properly understood, the Caparocase … achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. (at [29])The clear suggestion here, then, is that even truly novel cases are to be decided on their merits, and the incremental approach is not a direction to courts to treat novelty alone as a basis for denying duties of care. On the contrary, courts faced with novel claims still have, in the end, to make a judgement of justness and reasonableness. But this judgement is to be made not by straight appeal to high principle but via a consideration of whatever analogous cases we can find (remembering that analogy is a matter of degree) and the more fact-specific considerations these cases identify.In this way, Robinsonseeks to reassert the true message of Caparo.21But it also emphasises Caparo’slimited role. As Lord Reed makes clear, if there isa previous decision which does cover the case at hand, then the court can say whether or not there is a duty of care by direct appeal to the precedent and so without any need to have recourse to Caparo. Indeed, one of the important messages of Robinsonis that courts not only do not needto resort to Caparowhen a case falls within an established duty situation; they should not do so. This was true in Robinsonitself.p. 72↵Robinsonv Chief Constable of West Yorkshire[2018] UKSC 4 (SC)The claimant, an elderly woman, was knocked to the ground and injured when two police officers attempted to arrest a suspected drug dealer. Her claim was dismissed at trial on the basis that the police had an immunity against claims in negligence. The Court of Appeal rejected her appeal on the grounds that the police generally owe no duty of care to members of the public and that, on the facts, there was no proximity between the parties and it would not be fair, just and reasonable to impose such a duty. The Supreme Court allowed the claimant’s appeal, holding that the defendants both owed and breached a duty of care to the claimant. Lord Reed gave the lead judgment:Applying the approach adopted in the Caparocase, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord Browne-Wilkinson explained in Barrettv Enfield London Borough Council[2001] 2 AC 550:
Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company … that decision will apply to all future cases of the same kind. (at 559–60)Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty. (at [26])One of the principles of negligence law, clearly established through the case law, is that we all owe each other duties of care not to cause one another foreseeable physical harm through our positive acts. This was the position that the defendant police officers found themselves in: it was reasonably foreseeable that, if they did not take reasonable care, in conducting their arrest, others in the vicinitymight end up being physically harmed. Accordingly, it was, the court concluded, clear as a matter of precedent that they owed a duty of care and it was wrong for the Court of Appeal to ask whether it would be fair, just and reasonable to impose such a duty.3.3 Where does this leave us?First it is important to remember that ultimately it is only a small minority of cases—where the courts are asked to determine whether new categories of claim should be recognised or existing precedents should be revised or extended—which call for the application of a general test or approach such as those propounded in Donoghue, Annsand Caparo. As such, the practical need for some such test is not great and the number of cases in which the courts must struggle through without the guidance of such a test are few.p. 73↵However, in such cases we now, at least, have some clarity. When determining if a duty of careis owed, the first place to look is to the decided cases. If they establish that a duty of care is, or is not,owed, then we have our answer, and the question of whether recognising such a duty would be fair, just and reasonable does not need to be asked and answered again. Even where the precedents provide no conclusive answer as to whether a duty of care is owed, they may nonetheless provide more concrete guidance than we get from Caparo. So, for example, if the claimant suffers pure psychiatric injury, the courts will look to cases such as Alcockv Chief Constable of South Yorkshire Police[1992]and Pagev Smith[1996], rather than Caparo, to answer the duty of care question. Similarly, in cases concerning pure economic loss, the courts have developed more concrete principles to help establish when duties of care are owed. Furthermore, as Robinsonshows, where personal injuries, and possibly property damage, are concerned, it will generally be the case that foreseeability of such injury will suffice to establish a duty; in other words, the test set down in Donoghuewill be used (although there are exceptions to this—see e.g. Marc Rich & Cov Bishop Rock Marine Co Ltd[1996]).Only where and to the extent that the precedents do not provide an answer does the court need to consider the fairness and reasonableness of recognising a duty of care. In doing this—and this is the key idea of the incremental approach outlined in Caparoand endorsed in Robinson—the court must still focus on the decided cases to ensure that the law develops coherently and consistently. In so doing, while the approach put forward in Caparodoes not itself determine when duties of care are
owed in novel cases—this is something the judges faced with such cases must decide for themselves—what it doesdo is provide a general steer when judges are making these decisions; a steer broadly as outlined in Decision Tree 3.1at the end of this chapter.Watch our video ‘Pursuing a will-o’-the wisp: Hinkypunks, Pokémon and Caparo’ where we explore the ongoing importance of Caparoon how courts establish a duty of care.PlayMuteLoaded: 3.44%Remaining Time -4:45CaptionsQuality LevelsFullscreenVideo 3.1: Pursuing a will-o’-the wisp: Hinkypunks, Pokémon and CaparoWe have seen that, as the Supreme Court stressed in Robinson, it is only in novel duty situations thatcourts must adopt the incremental approach endorsed in Caparo. In established duty situations, by contrast, the existence of a duty of care is already settled by statute or by precedent. However, it is not always easy to determine whether a case falls within an established duty situation or is indeed novel.Take, for example, Darnleyv Croydon Health Services NHS Trust[2018]. The claimant who went to hospital with a serious head injury and who was incorrectly told by a receptionist that he would haveto wait four to five hours for treatment. The claimant went home rather than wait, where his condition deteriorated. By the time he returned to hospital, it was too late to save him from permanent brain damage. In the Court of Appeal, the case was seen as raising a novel duty question: do hospital receptionists owe a duty of care to patients concerning waiting times. The court concluded, by majority, that it would not be fair, just and reasonable to do so. On appeal, however, the Supreme Court considered that this was not a novel duty case at all. In Lord Lloyd-Jones’s view:To my mind, … the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take p. 74↵reasonable care not to cause physical injury to the patient … In the present case, as soon as the claimant had attended at the defendant’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been ‘booked in’, he was accepted into the system and entered into a relationship with the defendant of patient and health care provider. The damage complained of is physical injury and not economic loss. This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury. While it is correct that no authority has been cited in these proceedings which deals specifically with misleading information provided by a receptionist in an A & E department causing physical injury, it is not necessary to address, in every
instance where the precise factual situation has not previously been the subject of a reported judicialdecision, whether it would be fair, just and reasonable to impose a duty of care. It is sufficient that the case falls within an established category in which the law imposes a duty of care. (at [16])22Pause for reflectionLet’s return to Donoghuev Stevenson. What is the duty situation that case established? The case itself concerned a manufacturer of ginger beer in the Scottish city of Paisley. However, no one would say that the duty category it supports applies only to bottles of ginger beer or is limited only to those producing drinks in Paisley. The same rule would apply if the court was then faced with a claim by someone who had found a slug in a bottle of lemonade in Glasgow. But how do we know this? One way is by looking at the judgments given in the case. That it was ginger beer—rather than, say, lemonade—and that the bottle was produced in Paisley—rather than, say, Glasgow—were not considerations which had any bearing on the decision and find no expression in the reasoning of the court. These, however, are easy examples. Does the Donoghuecategory extend beyond ginger beer and other drinks to food? Almost certainly. What about other potentially dangerous items? What about activities other than the provision of dangerous products? Does it extend, say, to dangerous advice(e.g. I tell you that it is safe to go into the nuclear reactor without protection). While none of these questions was addressed directly in Donoghue, we might nonetheless say that they were by implication. Indeed, this was the key thrust of the neighbourhood principle: whenever you are doing something which poses a reasonably foreseeable risk of harm, whatever that activity is, you must take reasonable care.Of course, this is precisely why the courts have rowed back on the neighbourhood principle: it goes too far. Nonetheless something like this process of generalisation—from the facts and decision in anygiven case to the broader rule or principle it stands for—is required every p. 75↵time we have to work out what range of cases is covered by a particular precedent or line of precedents. This then shows that, while the courts may say that they have ‘abandoned the search for a general principle capable of providing a practical test applicable in every situation to determine whether a duty of careis owed’ (Darnleyat [15]), even the incremental approach depends on drawing generalisations from individual cases, indeed the sort of generalisation which Donoghueendorsed. Moreover, it also suggests why lower courts—told that there is no general principle to be found but also to look out for ‘established’ (and general) duty categories—might find their task rather difficult.Important questions therefore remain. As Jonathan Morgan notes:The law on duty of care develops by analogy with decided cases. Of course it does: in the same way as the rest of the common law. The observation seems thoroughly banal. Yet the courts think it meaningful … In Lord Reed’s view [in Robinson] Caparo’s ‘whole point’ was to re-establish ‘an approach based, in the manner characteristic of the common law, on precedent’.23Is this really the best we can do? What should we be looking for in a test, or broader approach, for establishing duties of care? Why, it might be asked, do we need the duty of care at all? Is the criticism of some of these cases directed to the content of the actual decisions or simply to the language that the courts have been using to explain their decisions? These are some of the questionsyou should be thinking about as you read the chapters that follow (which discuss situations where the law either denies a duty of care outright or makes establishing such a duty more onerous) and as you begin to learn more about duty and the tort of negligence as a whole.2.6p. 41 Omissions
Although Lord Atkin in Donoghue v Stevensonrefers to ‘acts or omissions’ as forming the basis of the negligence action, English law has been reluctant to impose liability for omissions, or failures to act. Another way of describing this is to say that in English law there is generally no duty to perform actions to help someone or to prevent their injury. The example is often given in terms of the possible rescue of a non-swimmer struggling in the water. The general position is that tort law would impose no liability on someone who had the means to rescue the drowning person but chose not to!This may be surprising and indeed there are many other jurisdictions, such as that of France, which provide for both civil as well as criminal liability in such situations.Why should duty of care be restricted in the case of omissions? Read the following excerpt from the opinion of Lord Hoffmann in Stovin v Wise(1996) and look for the following reasons:invasion of freedom;‘why pick on me?’; andeconomic inefficiency.There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes. One can put the matter in political, moral or economic terms. In political terms, it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the ‘why pick on me?’ argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call ‘externalities’) the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. Except in special cases (such as marine salvage) English lawdoes not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket.Before going on to look at case law in this area and the very important exceptions to the above rule, it is necessary to clarify what is meant by an omission in law. Obviously, many negligent courses of action involve notdoing something. When a driver fails to stop at a red light, he has failed to put his foot on the brake pedal. This would not be treated in law as an omission, but rather just as one aspect of his negligent way of driving his car. We are often, here, looking at a defendant’s failure to protect the claimant from a risk of harm caused by a third party or by himself. Another way of describing it, suggested by Lunney and Oliphant in Tort Law: Text and Materials, 5th edn (OUP, 2013),is the difference between ‘making things worse’ (which could bring liability) and ‘failing to make things better’ (which often does not).p. 42Case Close-UpStovin v Wise(1996)
In Stovin v Wise, we have seen that the cause of the danger to road users was the bank of earth projecting from land owned by British Rail (in addition to the negligent driving of one of the vehicles which crashed). Norfolk County Council was being sued for its failure, or omission, to enforce removal of the obstruction, of which it was aware. The fact that the Council’s wrong was an omission was the major factor, combined with the fact that it was a public body, in concluding that there had been no duty of care. Lord Hoffmann (in the majority) and Lord Nicholls (in the minority) agreed that although there could often be uncertainty about categorizing omissions, it was correct that there should be a presumption against duty of care in these cases. Lord Nicholls said:[T]he recognised legal position is that the bystander does not owe the drowning child or the heedlesspedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother’s keeper and have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity. That is the customary label.Thinking PointDiscussions around duty of care often use religious terminology, such as reference to the parable of the Good Samaritan and, above, ‘my brother’s keeper’. Do you think that the approach of English lawto the duty to rescue can be attacked as immoral or can you defend it?What is Lord Nicholls’ ‘something more’? Looking at Smith v Littlewoods(1987) will help provide the answers.Case Close-UpSmith v Littlewoods(1987)The defendants owned a disused cinema which they were intending to demolish. Before they could do so, people began to break into the property and several times, unknown to the defendants, attempted to start fires in piles of rubbish which had accumulated. A fire was started which spread toand damaged adjoining properties. The owners of those properties sued the defendants in negligence for their failure to adequately secure the premises. The damage was done by the arsonists (who would not be worth suing), so instead the claimants sought compensation from Littlewoods, who were no doubt well insured!p. 43↵According to Lord Goff:That there are special circumstances in which a defender may be held responsible in law for injuries suffered by the pursuer through a third party’s deliberate wrongdoing is not in doubt. For example, a duty of care may arise from a relationship between the parties, which gives rise to an imposition or assumption of responsibility upon or by the defender, as in Stansbie v. Troman[1948] 2 K.B. 48, where such responsibility was held to arise from a contract. In that case a decorator, left alone on thepremises by the householder’s wife, was held liable when he went out leaving the door on the latch, and a thief entered the house and stole property. Such responsibility might well be held to exist in other cases where there is no contract, as for example where a person left alone in a house has entered as a licensee of the occupier. Again, the defender may be vicariously liable for the third party’s act; or he may be held liable as an occupier to a visitor on his land. Again, as appears from thedictum of Dixon J. in Smith v. Leurs, 70 C.L.R. 256, 262, a duty may arise from a special relationship between the defender and the third party, by virtue of which the defender is responsible for controlling the third party: see, for example, Dorset Yacht Co. Ltd. v. Home Office[1970] A.C. 1004. More pertinently, in a case between adjoining occupiers of land, there may be liability in nuisance if
one occupier causes or permits persons to gather on his land, and they impair his neighbour’s enjoyment of his land. Indeed, even if such persons come on to his land as trespassers, the occupier may, if they constitute a nuisance, be under an affirmative duty to abate the nuisance. As I pointed out in P. Perl (Exporters) Ltd. v. Camden London Borough Council[1984] Q.B. 342, 359, there may wellbe other cases.These are all special cases. But there is a more general circumstance in which a defender may be heldliable in negligence to the pursuer, although the immediate cause of the damage suffered by the pursuer is the deliberate wrongdoing of another. This may occur where the defender negligently causes or permits to be created a source of danger, and it is reasonably foreseeable that third partiesmay interfere with it and, sparking off the danger, thereby cause damage to persons in the position of the pursuer. The classic example of such a case is, perhaps, Haynes v. Harwood[1935] 1 K.B. 146, where the defendant’s carter left a horse-drawn van unattended in a crowded street, and the horses bolted when a boy threw a stone at them. A police officer who suffered injury in stopping the horses before they injured a woman and children was held to be entitled to recover damages from the defendant. There, of course, the defendant’s servant had created a source of danger by leaving his horses unattended in a busy street. Many different things might have caused them to bolt—a suddennoise or movement, for example, or, as happened, the deliberate action of a mischievous boy. But all such events were examples of the very sort of thing which the defendant’s servant ought reasonably to have foreseen and to have guarded against by taking appropriate precautions.… I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability.… [T]here is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defender does not take steps to prevent it.The reluctance of English courts to impose liability on a party for the wrongdoing of a third party wasillustrated by the recent case of Kalma v African Minerals Ltd(2020). Employees of the defendant company in Sierra Leone were severely abused by the local police, who were supporting the company’s operations in the area. Applying the Caparotest, it was held that neither was there sufficient proximity between the claimants and defendants nor would it be fair, just, p. 44↵and reasonable to impose a freestanding duty of care. The situation was treated by the court as one purely of omission, nor was there any sort of accessory liability which could be imposed upon the company.2.6.1 Exceptions to no liability for omissionsThe areas of exception which emerge from Lord Goff’s speech are:(1)a relationship between the parties which gives rise to an assumption of responsibility (this might be based on a contract, but not necessarily);(2)a specific or inferred undertaking of responsibility for the claimant by the defendant;(3)a relationship of control between the defendant and a third party; and(4)
the defendant creates or permits a source of danger to be created, which is interfered with by third parties. Additional to this is a failure of a defendant to remove a source of danger of which he is aware.Lord Goff also refers to nuisance, vicarious liability, and occupiers’ liability but they will not be dealt with at this stage.We now consider cases which illustrate the exceptions to the basic rule about liability for omissions.2.6.1.1 Relationship creating a positive dutyThe scope of the ratio in Smithwas further defined by the Law Lords in Mitchell v Glasgow City Council(2009). A negligence action was brought on behalf of the deceased tenant of social housing managed by the defendants. He was murdered by a fellow tenant, following a long campaign of abuse and threats, of which the defendants had been aware but had failed to warn the deceased. The required element of a relationship of responsibility was absent, as it would not be ‘fair, just and reasonable’ to impose a positive duty to warn on a public authority coping with an onerous burden of antisocial behaviour among tenants.In Rabone v Pennine Care NHS Trust(2012) Melanie Rabone, a ‘voluntary’ patient in a hospital’s mental health unit was suffering from severe depression and had known suicidal tendencies. Despite her family’s doubts, doctors negligently gave her weekend leave, whereupon she died by suicide. A negligence claim against the Trust on behalf of Melanie’s estate was settled. Her parents then brought their own action against the Trust, for breach of the Article 2 duty to protect life. The Supreme Court took this opportunity to extend this positive duty under the Human Rights Act 1998 to a hospital authority which had undertaken an operational duty to a voluntary patient.2.6.1.2 The undertaking of responsibility for the claimantIn Stansbie v Troman(1948), a decorator was held liable to the homeowners for a theft of jewellery which took place when he left the house unlocked when going out for two hours to buy wallpaper. The contractual relationship between the parties was held to have created a duty on the defendant to take positive steps to protect the claimant from loss.p. 45↵In Barrett v Ministry of Defence(1995), there had been a pattern of excessive drinking among soldiers at a remote Navy base, where drinks were very cheap. One night a soldier collapsed while drunk. The duty officer arranged for him to be taken to his room where he was left and later died dueto choking on his own vomit. His widow brought a negligence action against the Ministry of Defence. The Navy was not held to be under a general duty to prevent its employees from excessive drinking; however, here a relationship of care had been undertaken.Lord Justice Beldam in the Court of Appeal observed:In the present case I would reverse the judge’s finding that the defendant was under a duty to take reasonable care to prevent the deceased from abusing alcohol to the extent he did. Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter when the defendant assumed responsibility for him, it accepts [sic] that the measures taken fell shortof the standard reasonably to be expected. It did not summon assistance and its supervision of him was inadequate.In Kent v Griffiths(2000), a GP made a 999 call for an ambulance to take a pregnant woman suffering from an asthma attack to the hospital. The call was taken and an ambulance dispatched; however, it took thirty-eight minutes to arrive, despite two further calls by the GP, although the distance was
only 6.5 miles. The patient suffered brain damage and lost her baby, and she sued the ambulance service in negligence for the damage attributable to the delay. The Court of Appeal reversed the earlier ruling against the claimant and held that the acceptance of the call created a duty of care in respect of the patient. The ambulance service was liable.On the other hand, a failure to assume responsibility was clearly established by the lack of proximity between the defendant and the claimant’s harm in Sutradhar v NERC(2006). A large number of people in Bangladesh had been poisoned by drinking from a well which had been contaminated by arsenic. The defendants had been commissioned by the Overseas Development Agency to test local water for minerals which might be harmful to fish. They had not been required to, nor did they ever consider, the testing of the water for arsenic. A negligence action failed in both the Court of Appeal and, unanimously, in the House of Lords. There was held to be no relationship of proximity between the claimants and the defendant that would give rise to a positive duty to test for arsenic in the water. Lord Hoffmann expressed his position strongly:[The] principle is not that a duty of care is owed in all cases in which it is foreseeable that in the absence of care someone may suffer physical injury. There must be proximity in the sense of a measure of control over and responsibility for the potentially dangerous situation. Such a principle does not help the claimant. … The [defendant] had no control whatever, whether in law or in practice, over the supply of drinking water in Bangladesh, nor was there any statute, contract or other arrangement which imposed upon it responsibility for ensuring that it was safe to drink.2.6.1.3 Existing relationship with wrongdoer involving controlIt will be recalled that a duty of care was held to be owed to property owners in the vicinity of the Borstal camp in Home Office v Dorset Yacht. Again it must be emphasized that this was another example of an omission—that is, the failure of the prison authorities to prevent the boys’ escape. In the House of Lords it was held that, because the custodial relationship between p. 46↵the prison authorities and the wrongdoers could be described as one of control, the torts committed by the boys were the responsibility of the Home Office.The case of Carmarthenshire County Council v Lewis(1955) concerned a young child who ran from his nursery school premises onto the busy road which ran nearby. The plaintiff’s husband swerved hiscar to avoid hitting the child and was himself killed when his car hit a tree. The defendant County Council and the teachers at the school were held to have been jointly in control of the child and therefore under a duty to take reasonable steps to prevent them becoming a danger to others.2.6.1.4 Creation of or failure to remove a dangerWe have seen that in Smith v Littlewoods, the House of Lords carefully considered whether the defendants could be held liable for negligently failing to ‘abate a fire risk created by third parties on their property without their fault’. Lord Goff believed that this was the sort of situation in which liability could be imposed for a failure to act. Here it was concluded that the risk of arson to the claimant’s property was not reasonably foreseeable and on that basis their neighbours could not have been liable in negligence for failing to address it.The case of Goldman v Hargrave(1966) was a nuisance case; however, Lord Goff used it as an example of the sort of situation in which negligence liability might be imposed for an omission. In Australia, lightning struck a large tree on the defendant’s land, causing it to catch fire. The defendant did not sufficiently put the fire out and, when the wind changed, the fire spread to the claimant’s
land. This had been a hazardous state of affairs which the defendant omitted to remedy, and for this Lord Goff suggested that a duty in negligence could in some circumstances be owed.Cross ReferenceSee Chapter 12.It would seem, however, that the courts are often reluctant to impose liability. In Topp v London Country Buses Ltd(1993), a bus driver left his bus, along with the ignition keys, in a lay-by near to a pub for a relief driver who never arrived. Some nine hours later the bus was stolen and, while being driven by the thief, hit and killed the claimant’s wife. The Court of Appeal held that no duty of care arose. The theft was not foreseeable as a result of the defendants’ negligence. Proximity between the bus company and the deceased was doubtful. In any case it would not be fair, just, and reasonable to impose a duty. It would appear that it was crucial to the decision that the defendants had not been aware of the nature of the clientele of the pub!Case Close-UpCapital & Counties plc v Hampshire County Council(1997)The sometimes vexed position of the emergency services was at issue in this case. It concerned a number of cases against fire services who arguably had failed to prevent damage by fire. In only one of the cases was there held to have been a duty of care owed to the claimants: this was where a sprinkler system was turned off by the defendants. This positive act ultimately made the claimants’ position worse, when a fire which had not been completely p. 47↵extinguished reignited. Students should note that merely taking the emergency call and arriving at the fire scene was not, in itself, enough to create a duty of care. There were strong policy reasons that the Court of Appeal felt that the fire service should be seen to owe a duty of care in negligence to the community as a whole, rather than individual property owners. You might wish to contrast this decision with that in Kent v Griffiths, discussed earlier.Breach of duty Breach occurs where the defendant falls below the particular standard of care demanded by the law. Establishing this involves making a value judgement on the defendant’s behaviour—was the defendant driving too fast given the particular road conditions? Did the doctor follow the correct procedure or administer the correct drug? Was appropriate safety equipment provided by the employer, and so on? The key issue to be addressed is how and where the courts set the acceptable standard or level of care owed towards one’s neighbours. There are two questions to be considered.(1)How the defendant oughtto have behaved in the circumstances—what was the required standard ofcare in these circumstances? This is often described as a matter of law.(2)How the defendant didbehave—did they (as a matter of fact) fall below the standard of care required?As the majority of cases turn largely on the facts at hand—the speed of the car and whether it was appropriate for the time of day, location and so on—it is difficult (although not impossible) to make generalisations about how the defendant oughtto have behaved, that is where the standard of care
will be set. Moreover, the relation of many everyday negligence cases issues to duty and causation will be straightforward and so liability will turn on breach, on what the defendant should and did (or did not) do. As such, despite its practical importance the lawhere is relatively limited. The most we can do is identify a few broad and rather open-ended propositions. Indeed, Tony Weir argues that ‘decisions on breach are not citable as authorities; they are merely illustrationsof the application of the indubitable rule that if one is under a duty at common law such care must be taken as is called for in all the circumstances’.2However, this only goes so far. While clearly the determination of whether a breach has occurred depends on the particular facts of the case, it is nevertheless possible to identify some broad principles that the courts use when seeking to define the appropriate standard of care, which give some indication as to what the law requires us to do in order to avoid causing harm to others.Pause for reflectionSome of the most familiar negligence cases—that is the ones most often reported in the media—involve ‘freak accidents’ during entertainment events or school trips.3These have often been followed by calls for a public inquiry (to investigate the cause of the tragedy and p. 226↵make recommendations to prevent similar accidents from happening in the future) or a review of health and safety guidelines,4as well as claims for compensation.5In deciding these claims, the courts seek to strike a balance between ensuring safety and curtailing legitimate activities and/or commercial interests. The balance can be a tricky one:Accidents happen, and sometimes they are what can be described as pure accidents in the sense that the victim cannot recover damages for the resulting injury because fault cannot be established. If the law were to set a higher standard of care than that which is reasonable … the consequences would quickly become inhibited. There would be no fêtes, no maypole dancing and none of the activities that have come to be associated with the English village green for fear of what might conceivably go wrong. (Scott-Baker LJ, Colev Davies-Gilbertat [36])As you are reading the cases in this and other chapters, consider where you think the line should be drawn. What factors do you think might have pushed the courts one way or another?8.2 A test of reasonablenessThe first thing to note about the standard of care in negligence is that it is nota standard of perfection. The standard allows for someerrors and mistakes. As Lord Atkin held in Donoghuev Stevenson[1932]: ‘You must take reasonable careto avoid acts or omissions which you can reasonably foreseewould be likely to injure your neighbour’ (at 580, emphasis added). The key requirement is that the defendant behaves reasonably. Of course, this simply prompts the question: what is reasonable behaviour? Or, put another way, what standard of care did the circumstances require?The courts answer this question by comparing what the defendant has done to the imagined actions of the so-called ‘reasonable man’ and asking what a reasonable man in the position of the defendantwould have done in the circumstances, If the defendant has done something that the reasonable man would nothave done (or has omitted to do p. 227↵something that the reasonable man wouldhave done) then they will be in breach of their duty (Hazellv British Transport Commission[1958] at 171). In short,[n]egligence is the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do. (Alderson B, Blythv Birmingham Waterworks(1856) at 784)So who is this apparent paragon of virtue against whom all others are to be judged? Over the years various descriptions have been attempted, often involving some mode of transport: the reasonable man is ‘the man on the Clapham omnibus’ (Greer LJ, Hallv Brooklands Auto-Racing Club[1933] at 224), ‘the man who in the evening pushes his lawnmower in his shirtsleeves’ (Lord Greer, Hallv Brooklands Auto-Racing Club[1933] at 224) or, more recently, a ‘traveller on the Londonunderground’ (Lord Steyn, McFarlanev Tayside Health Board[1999] at 82). Rather more grandly, he is ‘the anthropomorphic conception of justice’ (Lord Radcliffe, Davis Contractorsv Fareham Urban District Council[1956] at 728).Yet, while it is agreed that the reasonable man is neither all-seeing nor all-knowing and that, on occasions, he makes reasonablemistakes, there is less agreement (particularly among feminist legal scholars) about whether these qualities should be tied to the physical characteristics of a man. Moreover, it is clear that even if we adopt the more politically correct (if not less contentious) ‘reasonable person’ terminology, questions remain: what is her or his ethnicity, religion, class, sexual orientation, age, education, and so on?Is the reasonable person … [m]ale or female? Young, middle-aged or old? Christian, Muslim or of some other, or no, religion? Rich, poor or averagely affluent? Perhaps none of these differences between people is relevant, for instance, to questions about how a reasonable person would drive a car, but some or all of them may be thought relevant in some contexts.6Feminist critiques of the reasonable manFeminist and other legal scholars have argued that despite claims to gender-neutrality, the standard of the reasonable man in fact embodies a male point of view and as such holds women to a standard devised without them in mind. This criticism goes beyond a dislike of the way the standard is expressed: ‘his gender-specificity is not just a linguistic convention, whereby both sexes are denoted by reference to the masculine: the reasonable man is, in fact, male’.7What does this mean? There are a number of aspects to this critique. One focuses on the fact that the notion of the ‘reasonable man’ is not based on statistical evidence of what most people actually do think and do. Rather, it is a conception conjured up by the judges p. 228↵themselves embodying a standard set and considered appropriate by them. Given the continuing under-representation of women, ethnic minorities and other non-traditional groups within the judiciary, particularly in its upper echelons, it is likely that the ‘reasonable man’ reflects the particular perspectives, assumptionsand (possibly) prejudices of a subset of society—that is, those (white, middle-class men) who make up the judiciary.More controversially, it is argued that the standard of reasonableness not only assumes but prioritisesthe ability to adopt a position of detached objectivity from which to weigh up the costs and benefits of a particular course of action—an ability traditionally (and, perhaps, essentially) associated with men. Assuming this is true, then the very idea of applying ‘a standard of reasonable care’, it is argued, seems to embody a peculiarly maleway of thinking and to exclude differences in the way women think and act. As such, the problem is not with the language of the reasonable ‘man’, but with the very notion of ‘reasonableness’. On this view, it may well be ‘dangerously misleading’ to adopt the rebranding of the reasonable person—since it attributes a ‘false universalityto what is in fact a partial and loaded standard’.8
The truth of the matter is, of course, that there is no such individual as the reasonable man (or indeed person). The reasonable man is a judicial construct—or shorthand—through which the judgesseek to determine what was reasonable conduct in the circumstances of the particular case: the reasonable man is the personification of the judicial view of reasonableness. This does not mean, however, that the reasonable man is simply the personification of the judges themselves, or a decoy behind which they can and do pursue their own preferences and prejudices.9Not least because thereis a whole series of rules, developed through the case law, setting out the qualities and conduct—the‘standard of care’—expected of the defendant. It is to these that we now turn.8.3 An objective standardThe first thing to note is that the test of ‘what the reasonable man would do in the circumstances of the case’ is objective. This means that the standard of care expected of the defendant is not dependent on, or skewed in favour of, certain characteristics and/or capabilities of the defendant; the personal idiosyncrasies of the defendant are largely (although, as we shall see, not completely) irrelevant (Glasgow Corporationv Muir[1943] at 457). Put simply (except for in a very few, limited, circumstances) the appropriate question is not ‘what could this particulardefendant have done?’ butrather ‘what level of care and skill did the activity the defendant was undertaking require?’ Thus, even though certain individuals may, due to certain inherent characteristics (e.g. experience and so on), be more or less able to take care, p. 229↵the law imposes the same standard of care on everyone.10The defendant cannot (usually) argue against, or raise as a defence in response to, the imposition of liability on the grounds that they ‘did their best’ according to their education, experience, health and so on where their best falls below the standard of care expected of the reasonable man. This is clearly seen in the case of Nettleshipv Weston[1971].Nettleshipv Weston[1971] 2 QB 691 (CA)Mrs Weston, the defendant, was learning to drive. The claimant had agreed to give her driving lessons. Mrs Weston was holding the steering wheel and controlling the pedals, while the claimant moved the gear lever and handbrake. Unfortunately, after turning a corner, the defendant failed to straighten the steering wheel and panicked. Despite her best efforts, and the fact that the car was only travelling at walking pace, the car mounted the pavement and hit a lamp post breaking the claimant’s knee cap. The defendant was convicted of driving without due care and attention.11The claimant sued in negligence.The majority of the Court of Appeal held that all drivers, including those learning to drive, are held to the same standard: ‘The standard of care … is measured objectively by the care to be expected of an experienced, skilled and careful driver’ (at 702). The standard of care in negligence is not dependent on the particular defendant’s characteristics and/or capacities. The fact that, as a learner, she was by definition incapable of meeting this standard was irrelevant: ‘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’ (at 699). Nevertheless, the claimant’s damages were reduced by 50 per cent for contributory negligence as he was jointly controlling the car at the time of the accident.12The decision of the Court of Appeal in Nettleshipis perhaps a little harsh. As a learner driver Mrs Weston was unable to reach the standard of care to which she was ultimately held. Moreover, the claimant was well aware of the defendant’s limited driving capabilities—he was in the car becausehehad agreed to give her driving lessons. As Salmon LJ, in dissent, noted, a learner driver cannot owe an instructor a duty to drive with a degree of skill they both know is not possessed (at 705). However,in taking the opposite view and holding the defendant to an objective standard, the majority sought
to avoid the ‘endless confusion and injustice’ that would follow should the standard of care be variedaccording to someone’s knowledge of another’s skill (at 700). By applying the same standard to all drivers, the decision in Nettleshipensures that victims of road accidents do not lose out simply because they were unlucky enough to be injured by someone who is learning to drive. The alternative is that the innocent victim of a learner driver who had driven as well as could be expected(albeit to a standard somewhat lower than that expected of an experienced driver) would be denied compensation.p. 230CounterpointThe ‘objective standard of care can be understood as the law’s attempt to strike a fair balance between the competing interests in freedom of action and personal security that we all share’.13But does the decision in Nettleshipstrike a ‘fair balance’ between the parties? Is it fair?The reason we make liability in negligence conditional upon the defendant having failed to exercise reasonable care (rather than, for instance, making liability strict) is the belief that it is only where the defendant is at fault(and that fault causes the claimant’s injuries) that the law should require the defendant to pay compensation. Corrective justice does not require that we compensate allthe harms we cause, only those that we cause through our fault or neglect. The problem with the decision in Nettleshipis that it imposes liability without genuine fault.14The decision in Nettleshipis perhaps better understood as resting on a more pragmatic motivating factor—compulsory motor insurance. The majority judges ‘see to it’ that the defendant is liable so that the claimant can be compensated out of the insurance fund (at 700). In so doing, the Court of Appeal elevates the function of tort as a mechanism of compensation over that of achieving corrective justice, something that Lord Denning MR clearly recognises:Thus we are, in this branch of the law, moving away from the concept: ‘No liability without fault’. We are beginning to apply the test: ‘On whom should the risk fall?’ Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her. (at 700)Ultimately, of course, the financial loss falls neither on the claimant nor the defendant but on the defendant’s insurance company (and in turn other insurance policy holders). It is more accurate therefore to suggest that in Nettleshipthe fault principle is subordinated not only to ensure the claimant is compensated but also to the loss-shifting goals of distributive justice.Despite appearances (underlined by Nettleship), the objective standard of care is not a standard of perfection. Take, by way of example, Birchv Paulson[2012] in which a car driver was not liable for the serious injuries suffered by a drunk pedestrian who stepped out in front of her car. The Court of Appeal held that:[while] it would have been very easy indeed for the defendant, as she approached this man on the kerb, either to have taken her foot off the accelerator or to have steered towards the centre of the road or both … the legal test is not a question … of perfection using hindsight. Of course it is not, and drivers are not required to give absolute guarantees of safety towards p. 231↵pedestrians. The yardstick is by reference to reasonable care … there was nothing here to require the defendant as a reasonably careful driver to act in any way other than a way in which she did act given the situation in which she found herself at the time. (at [32])15The willingness of the court to apply an objective standard of care, independent of the characteristics and capacities of the defendant, was taken to an extreme in Robertsv Ramsbottom[1980]. In this case, the defendant had (unknowingly) suffered a cerebral
haemorrhage before starting to drive into town. Though he realised his consciousness was impaired, he was unaware that he was unfit to drive. As he was driving along, he suddenly began to feel much worse. He subsequently collided with a stationary van, narrowly avoided two men working in the road and knocked a cyclist onto the pavement, before ploughing into the claimant’s car, seriously injuring the claimant and damaging the car. The defendant argued that from the moment of his stroke he was unable, through no fault of his own, to control his car properly or appreciate that he was unfit to drive. Neill J disagreed. Though the defendant was in no way to blame morally, he was nonetheless liable in the tort of negligence. He had fallen below the objective standard of the reasonable driver in relation to both in his collision with the claimant and also in continuing to drive despite feeling increasingly unwell and following his earlier collision with the parked van, even though he was, at the time, unable to appreciate their significance. It was acknowledged that if he had suffered a complete loss of consciousness he might have had a defence of ‘automatism’.In Nettleshipand Robertsv Ramsbottomliability in negligence was imposed even though the defendant was not (or may not have been) genuinely at fault. However, the relevance of fault was reasserted in another dangerous driving case a few years later, Mansfieldv Weetabix Ltd[1998], where the Court of Appeal held that the defendant was not liable for the damage caused to a shop (and shop owner’s home) when the lorry he was driving crashed into it. Unknown to the defendant, he had a medical condition (malignant insulinoma), which starved his brain of glucose so that it was unable to function properly. The final accident, which formed the basis of the claim, was the culmination of a gradual lowering of his blood sugar level. However, crucially, the court held that at no time had the defendant been aware of his condition, despite the fact that over the course of 40 miles he had been involved in three distinct incidents, one of which involved the police. Leggatt LJ distinguished Nettleshipon the ground that that case did not deal with the situation where the defendant was unaware of his disability (at 1267) and Robertsv Ramsbottomon the basis that the defendant had ‘continued to drive when he was unfit to do so and when he should have been aware of his unfitness’ (at 1266–7). The defendant had not, therefore, fallen below (ie breached) the standard of care applied by the court, which was of ‘a reasonably competent driver unaware that he is, or may be, suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of … [the defendant’s] condition would be to impose strict liability … that is not the law’ (Leggatt LJ at 1268).p. 232Pause for reflectionOf course, the practical result, as acknowledged by Leggatt LJ, of Mansfieldv Weetabixis that the claimants whose shop and home had been destroyed were left uncompensated and the defendant’s pot of insurance money remained untouched: ‘the plaintiffs may well have been insured [e.g. household or business insurance]. Others in their position may be less fortunate. A change in the law is, however, a matter for Parliament. Meanwhile, since in my judgment … [the defendant] was in no way to blame, he was not negligent’ (at 1268). Though they were aware of the harshness of the decision to the claimants, the Court of Appeal judges in Mansfield, unlike those in Nettleship, were unwilling to find the innocent lorry driver liable simply in order to compensate the claimants—who, after all, had (or should have had) their own householdinsurance. Responsibility for any change in the law, they argued, lay at the feet of Parliament (at 1268). Which approach do you prefer? Why? Think again about the arguments made earlier in relation to Nettleship.As Mansfieldv Weetabixdemonstrates the court have, on occasions, been willing to modify or vary the objective standard in relation to someillness:
Corr[v IBC Vehicles Ltd], Mansfieldv Weetabix… Roberts[v Ramsbottom] recognise that whether induced by severe acute and engaged symptoms of mental illness or an hypoglycaemic state, coronary thrombosis, or other physically irresistible impulse, on rare occasions evidence will show the alleged tortfeasor not in any meaningful sense the agent for the damage since autonomy and ability to reason and act was wholly eliminated. (Rafferty LJ, Dunnagev Randallat [19])An example where this was not the case is Dunnagev Randall[2015]. The claimant, an undiagnosed paranoid schizophrenic, set himself on fire injuring his nephew (who was attempting to prevent the accident). He was found to have fallen below the standard of care of a reasonable man. Rejecting theapplication of Mansfieldv Weetabix, the Court of Appeal held that:unless a defendant can establish that his condition entirely eliminates responsibility … he remains vulnerable to liability if he does not meet the objective standard of care. It is the entirety of the elimination which drives this conclusion, and once that entirety is eroded or diminished, he is fixed with the standard. The evidence was that [the claimant’s] responsibility came very close to complete elimination, but the experts stopped short of finding that it was complete. (Rafferty LJ at [114])16Other occasions where the courts have been willing to modify or vary the objective standard to take into account certaincharacteristics of somedefendants are where the defendant is a child or professes to have a special skill or competence.8.3.1p. 233 ChildrenIt is accepted that the capacity of children to recognise the dangers of a particular activity, take care to avoid them and not hurt others varies according to the age of the child (unlike in criminal law there is no minimum age for liability in tort). In cases involving children the standard of care applied is scaled according to age so that it becomes that which can be ‘objectively expected of a child of that age’ (Orchardv Lee[2009]at [9]). The question for the court is, in the words of Salmon LJ, ‘whether any ordinary child of 13½ [for example] can be expected to have done any more than this child did. I say “any ordinary child”. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13½’ (Goughv Thorne[1966] at 1387).Orchardv Lee[2009] EWCA Civ 295 (CA)Two 13-year-old boys were playing a game of tag in a courtyard and walkway designated for their year group during their school lunch break. During the course of the game the defendant was running backwards, taunting the other boy. Unfortunately he ran into the claimant, who was workingas a lunchtime assistant supervisor at the school. The back of his head hit her cheek and, though the injury initially seemed insignificant, it later became quite serious. The trial judge dismissed the supervisor’s claim finding that ‘it was a simple accident caused by “horseplay between two 13-year-old boys in and around an outside court yard … boys doing what boys do”’ (at [2]).The Court of Appeal agreed. A child will only be held liable in negligence if their conduct is careless toa very high degree or falls significantly outside the norm for a child of their age. In assessing whether this is the case ‘the question is whether a reasonable 13-year-old boy, in the situation that [the defendant] was in, would have anticipated that some significant personal injury would result from hisactions’ (Aikens LJ at [24]). As there was nothing to suggest that the defendant was playing tag ‘in a manner in which a 13-year-old boy would reasonably foresee there was likely to be injury beyond that normally occurring while a game of tag was in progress’, the defendant had not fallen below the standard of care required of him (Waller LJ at [12]).Pause for reflection
As noted in the Australian case of McHalev Watson(1966), ‘Children, like everyone else, must acceptas they go about in society the risks from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of 12 may behave as boys of 12’ (at 216). Or, indeed, that 15-year-old schoolgirls will ‘play as somewhat irresponsible girls of 15’ (Mullinv Richards[1998] at 1312).The ‘reasonable child’ standard invoked by the court effectively prevents a child-defendant’s action being measured against a standard of care that they are unable to reach. How—if at all—can this be reconciled with the Court of Appeal’s decision in Nettleship?8.3.2p. 234 Common practice and special skillsAnother area where the courts modify or vary the objective standard is where a person professes to have a special skill or competence. The law requires that when dealing with people in the context of a calling or profession they do so with an appropriate level of competence.Nobody expects the passenger on the Clapham omnibus to have any skill as a surgeon, a lawyer, a pilot, or a plumber, unless he is one; but if he professes to be one, then the law requires him to showsuch a skill as any ordinary member of the profession or calling to which he belongs, or claims to belong, would display.17Thus, in Phillipsv William Whiteley[1938] the court denied a claim for damages in respect of an infection the claimant developed after having her ears pierced in a jewellery store. Ear-piercing is notsomething which requires a surgical level of skill and so the claimant could expect only that her ears were pierced to the standard of a reasonably competent jeweller, which they had been in this case.18In contrast, in Wrightv Troy Lucas (a firm) and George Rusz[2019], Eady J held an unqualified legal advisor to the standards of a professional lawyer:I have no hesitation in finding that the defendants should be held to the duty and standard of care that they had chosen to assume when holding themselves out as competent to carry out legal services for the claimant in his clinical negligence litigation. (at [82])Though the defendant had never described himself as a solicitor, he had held himself out as having ‘extensive experience’ of these types of claims and as being ‘as good as, if not better, than any solicitor or barrister’ (at [18]). He was ordered to pay over £260,000 in damages to compensate the claimant for what they were likely to have received had their original claim against the NHS been properly handled (on the advice of Rusz, the claimant had previously settled for £20,000 and incurred £73,000 in legal costs).8.3.2.1 The BolamtestTypically, a defendant cannot escape liability in negligence simply by arguing that they followed common practice: ‘Neglect of duty does not cease by repetition to be neglect of duty’ (Bank of Montrealv Dominion Gresham Guarantee and Casualty Company[1930] at 666). However, there is one important exception to this rule. The courts give wide latitude to professionals, acting in their professional capacity, to determine the standards by which they are to be judged. In cases where the defendant has a special skill or competence (i.e. a skill that the reasonable man ordinarily does not have) and the circumstances are such that they are required to exercise that skill or competence, the courts have developed a different approach. In such cases, the actions of the defendant are judged against those of the ordinary skilled man professing to exercise that skill—the so-called Bolamtest.p. 235Bolamv Friern Hospital Management Committee[1957] 1 WLR 582 (QBD)
The claimant was a patient who had been given electro-convulsive therapy without being given a relaxant drug and without the appropriate physical restraints. In the course of the treatment he fractured his hip, a possible consequence of the treatment about which he had not been warned. At the time, the medical profession held conflicting views on whether it was necessary to administer relaxant drugs before the procedure as a way of reducing the likelihood of injury and whether it was necessary to warn the patient of the risk of injury. In assessing the standard of care, the court held: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 … he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in thisparticular art … Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view. (McNair J at 586–7)As such, the defendant was not in breach of his duty, as other responsible doctors would have acted in the same way.Bolamapplies to allprofessionals exercising a special skill or competence. In Moyv Pettman Smith[2005], a case involving a claim in negligence against a barrister, Baroness Hale approved Lord Hobhouse’s view in Arthur JS Hall & Cov Simons[2002] that:the standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time-constrained circumstances. It requires a [claimant] to show that the error was one which no reasonably competent member of the relevant profession would have made. (at [25])However, a distinction is drawn between the defendant’s own ‘rank or status’ and that of the ‘post’ they are occupying at the time of the alleged breach (Wilsherv Essex Area Health Authority[1987] (CA) at 751). The defendant’s conduct is assessed according to the standard reasonably expected of areasonably competent person occupying such a post. The law makes no allowances for inexperience or for the fact that everyone must, to a certain extent, gain practical experience ‘on the job’. Thus in Wilshera junior doctor was held to the standards of the more senior post they were occupying at the time, notwithstanding the fact that this was effectively part of their training: ‘the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the p. 236↵position of the doctor) but of such a person who fills a post in a unit offering a highly specialisedservice’ (Mustill LJ at 751).19What this means in practice is that the courts generally defer to the standards of a particular profession as to what is considered appropriate behaviour. This is important: ‘judges are not qualifiedto make professional judgements on the practices of other learned professions … A professional should not be penalised, and held to be incompetent, just because a judge fancies “playing” at being architect, solicitor or doctor’.20CounterpointA balance needs to be struck between respect for expert opinions and showing them undue deference.21It is argued that the courts have been reluctant to impose liability on members of the medical profession. Traditional justifications for this include: the importance of the doctor’s reputation as a member of a respectable and responsible profession, a reluctance to interfere in a specialised branch of knowledge, the view that doctors are motivated by altruistic reasons and that it
would therefore be unfair to penalise them for every error and, finally, a fear of increased claims and defensive medical practices.22In her exploration of the gendered dimensions of the Bolamprinciple and its conflation of acceptedwith acceptablepractice, Sally Sheldon suggests a number of justifications which point inthe opposite direction. These include the need to compensate the victims of medical p. 237↵misadventures, the potential of negligence claims to discourage bad practice and reinforce the accountability of doctors (especially given their high status and remuneration), the current failure to recognise the vulnerability of the patient in the doctor/patient relationship and, crucially, the existence of liability insurance.23Which of these two positions do you find more persuasive?Bolamestablished that a doctor will not have fallen below the standard of care expected of a reasonable doctor, if they have acted in accordance with a respectable body of the medical profession (even if it is a minority viewpoint). However, this is qualified by a ‘gloss’ applied by the House of Lords in Bolithov City and Hackney Health Authority[1998]. In this case a young boy suffered brain damage and later died of a cardiac arrest following respiratory failure while in hospital.Two serious incidents of respiratory difficulties had preceded his death, during which nurses had called for the doctor, who never arrived. As a result, the young boy had not been intubated (which the claimant argued would have prevented his death). The doctor argued that, even if she had attended, she would not have intubated the young boy and that, as a result, her failure to attend hadnot caused his death. Ultimately, though the majority of witnesses agreed that the boy should have been intubated, the House of Lords was persuaded that—as a reasonable body of opinion would have acted as the defendant did—she had not fallen below the standard of care required of her. However, the court went on to stress that the common practices of a profession should not go completely unchecked:In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. (Lord Browne-Wilkinson at 243)The upshot of Bolithois that ‘doctor knows best’ only‘if he [sic] acts reasonably and logically and gets his facts right’.24If a particular practice, even if widely accepted within a profession, is logically insupportable, a defendant cannot escape liability simply by showing that others would have acted as they did.25What this means is p. 238↵that the Bolamtest is now better understood, to use Rachael Mulheron’s formulation, as a two-stage test:(1)Has the doctor acted in accordance with a practice accepted as proper by a respectable body of medical opinion?(2)If yes, is the practice itself ‘reasonable’ and ‘logical’.26However, crucially, Mulheron notes, the courts have not added a third stage in which they choose between two reasonable and logical schools of thought:[I]t is notfor the court to venture into a consideration of two contrary bodies of opinion and to decide the case on the basis of which, of the patient’s and the doctor’s expert medical opinion, it
prefers … Once Bolamapplies, the fact of differences in expert opinion cannot lead to a rejection of Bolamevidence.27The assumption that ‘doctors know best’ (albeit qualified by the Bolithogloss) has been especially controversial in relation to warning patients of the risks of treatment and the treatment of medically incapacitated adults and mature minors.28The former now appears to have been resolved following the recent case of Montgomeryv Lanarkshire Health Board[2015]in which the Supreme Court rejected the application of the Bolamtest in cases involving the disclosure of risks in a medical context.Until Montgomery, the leading case on the duty of doctors to inform their patients of the risks of their treatment was the 30-year-old decision in Sidawayv Bethlem Royal Hospital[1985]. In Sidaway,the claimant had been paralysed while undergoing an operation on her back. There was no evidence that the operation had been performed negligently. However, the claimant argued that she should have been told of the known (albeit very small) risk of paralysis accompanying the procedure and that, had she been told, she would not have had the operation. The majority of the House of Lords, applying Bolam, held that the doctor had not breached his duty of care in failing to inform p. 239↵her of the risks associated with her treatment as other reasonable doctors would have acted in the same way. There was one caveat however. In cases where the risk of ‘grave adverse consequences’ was ‘substantial’—the assessment of which was to be left to the doctor—‘in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognisingand respecting his patient’s right of decision, could hardly fail to appreciate the necessity for an appropriate warning’ (Lord Bridge, Sidawayat 24).The majority view has been the subject of extensive and scathing criticism, much of which has focused on Lord Scarman’s dissenting opinion, in which he argued that the courts ‘cannot stand idly by if the profession, by an excess of paternalism, denies its patients real choice. In a word, the law will not allow the medical profession to play God’ (at 1028). Indeed, as Lords Reed and Kerr noted in Montgomery, it would be ‘wrong to regard Sidawayas an unqualified endorsement of the application of the Bolamtest to the giving of advice about treatment’ (at [57]). Over the years, the unsatisfactory nature of the majority’s analysis in Sidawayhas meant that the courts in England and Wales have tacitly departed from it (in favour of Lord Woolf MR’s test in Pearcev United Bristol Healthcare NHS Trust[1999]): a position that ‘was effectively endorsed, particularly by Lord Steyn, in the causation case Chesterv Afshar[2005]’29and was unequivocally confirmed in Montgomery.Montgomeryv Lanarkshire Health Board[2015] UKSC 11 (SC)In 1999, the claimant gave birth to a baby boy. As a result of complications during the birth, during which the baby was starved of oxygen, the baby was born with significant disabilities. The claimant sued in negligence (on behalf of her son). The claimant was a relatively small woman and diabetic. Women with diabetes are more likely to have large babies and there is a 9–10 per cent risk of shoulder dystocia during vaginal delivery (the baby’s shoulders being too wide to pass through the mother’s pelvis). The claimant was told that she was having a larger than usual baby, however she was not told about the risks of her experiencing mechanical problems during labour. Her doctor accepted that there was a high risk of shoulder dystocia, but despite this, she said that her practice was not to spend a lot of time, or indeed any time at all, on it ‘because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small … and that if the condition was mentioned, “most women will actually say, ‘I’d rather have a caesarean section’ … and it’s not in the maternal interests for women to have caesarean sections”’ (at [13]).
p. 240↵The primary question for the court was whether, in failing to warn the claimant of the risk, the doctor was in breach of her duty of care towards the claimant. (The lower courts had found the doctor’s actions to accord with a responsible body of medical opinion (as required by Bolam) and—surprisingly—not to fall within the small group of cases involving ‘a substantial risk of grave adverse consequences’ where the court may substitute its own view.)The Supreme Court unanimously found in favour of the claimant. It held that patients have a right to make their own decisions and to be given sufficient information to do so. Doctors, therefore, have a corresponding duty to take reasonable care to ensure that a patient is aware of material risks inherent in treatment, and of any alternatives:Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor–patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship … patients are now widely regarded as persons holding rights,rather than as the passive recipients of the care of the medical profession … In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment …An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. (Lords Reed and Kerr at [75], [82], [87])The Justices made clear that significance of a risk is fact-sensitive and cannot be reduced to percentages, and that (in line with guidance issued by the General Medical Council) in order to advise, the doctor must engage in dialogue with her patient (at [89]).There is one important caveat (as well as the expected exceptions related to emergency treatment) to the doctor’s duty to inform in the form of a ‘therapeutic exception’. This allows a doctor to withhold information where ‘he reasonably considers that its disclosure would be seriously detrimental to the patient’s health’ (at [88]). The court anticipates that use of this caveat will be limited: ‘it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests’ (at [91]).A secondary question for the court related to causation. The lower courts held that the claimant had not established on the facts that she would have elected to have a caesarean section, had she been properly informed. Given the evidence of the doctor herself that ‘if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who p. 241↵faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section’, and the claimant’s own statements, it is unsurprising that the Supreme Court concluded that the claimant would have chosen a caesarean section had it been offered to her.30Pause for reflection
Montgomeryis also—particularly in Lady Hale’s ‘footnote’ to the main judgment—a timely and important recognition of patient—and in particular women’s—autonomy. It offers a ‘robust’ defence of women’s choice in the context of pregnancy and childbirth.31… it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done … Pregnancy is a particularly powerful illustration [of this] … That is not necessarily to say that the doctors have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child is at heightened risk from a vaginal delivery. In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after-effects. One of the problems in this case was that fortoo long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth. (at [109]–[111])Lady Hale continued,We do not have a full transcript of the evidence, but in the extracts we do have Dr McLellan [the defendant doctor] referred to explaining to a mother who requested p. 242↵a caesarean section ‘why it may not be in the mother’s best interest’ and later expressed the view that ‘it’s not in the maternal interests for women to have caesarean sections’. Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter. Giving birth vaginally is indeed a unique and wonderful experience, but it has not been suggested that it inevitably leads to a closer and better relationship between mother and child than does a caesarean section.In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear … that the Bolamtest, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the ‘natural’ and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which thisentails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St George’s Healthcare NHS Trustv S[1999]). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision … Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being. (at [114]–[116])32Lady Hale retired from the Supreme Court in January 2020. However, her comments in Montgomeryare indicative of what we came to expect—and welcome—from the first woman Justice on the Supreme Court during her time on the court.33Why do you think she decided to add a ‘footnote’ in this case? Do you think it is important that she did so?
Listen to this excellent podcast produced by Kings Chamberswhich features a conversation between Nigel Poole KC and Nadine Montgomery. They talk about her experience of taking her case all the way to the Supreme Court and the ramifications of the judgment. The podcast is just over 22 minuteslong so if you don’t have time to listen to it right now, just make a note to return to it later—or perhaps download it to listen to on the way to your tort seminar!CounterpointAnd yet, while Montgomerycalls for the opening up of lines of communication between medical professionals and patients, as Kirsty Keywood notes, the effectiveness of the case in promoting and protecting patient choice is—at least in part—dependent on resources p. 243↵being available to support their choices.34Could the decision in Montgomeryitself work against this?After all, one consequence of the decision in Montgomeryis that a substantial sum of the Lanarkshire NHS Board’s budget has been taken out of the collective pot. Maternity claims already represent the highest value, and the second highest number, of all NHS claims (though these represent just 0.1 per cent of all births).35However, while Lords Reed and Kerr acknowledged that the decision couldlead to an increase in defensive practices, as well as in claims from women claiming that they had not been adequately advised, they did not expect this to be the case:[A]n approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices … in so far as the law contributes tothe incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in theevent of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred. (at [81], [93])Do you agree?36Without doubt Montgomeryis a landmark decision.37‘“Informed consent” has arrived’ and is now ‘firmly part of English law’ (Lady Hale at [107]).38Doctors have ‘a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’ (at [87]). In Ducev Worcestershire Acute Hospitals NHS Trust[2018], Hamblen LJ suggested this involved a two-stage test (paragraph numbers refer to Montgomery):(1)What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals [83].(2)Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolamtest and not something that can be determined by reference to expert evidence alone [84]–[85]. (Duceat [33])
p. 244↵But when is a risk ‘material’? And, more importantly, how does a doctor determine what is material to a specific patient? The test of materiality, as set out in Montgomery, is ‘whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’ (at [87]). The test is both subjective and objective. However, what is less clear is the extent to which subjective factors relating to the patient are relevant:[T]he greater degree of subjectivity inserted into the assessment the further one departs from the standard of the reasonable patient. Some characteristics of a patient are obvious: In particular that person’s actual medical condition which would include its severity. Other personal factors may be less self-evident: such as the patient’s tolerance for or stoicism towards pain, or the ability to managepain. Other factors might be quite remote from the medical or physiological condition of the patient, such as the patient’s need to return to work, or the fact that the patient has suffered a recent event in his/her life (such as a bereavement or a divorce) which renders that person unusually fragile and (say) unwilling to take chances at that particular time. (Green J, Thefautv Johnston[2017] at [55])The test was applied by the High Court in Av East Kent Hospitals University NHS Foundation Trust[2015] (which was heard just five days after the judgment in Montgomery). The claimant argued that the defendant had negligently failed to warn her that the foetus she was carrying might be suffering from a chromosomal abnormality. It was common ground that were the risk of such an abnormality found to be ‘material’ then it ought to have been raised with the claimant. Finding for the defendant, the judge held that while a risk ‘somewhere in the region of 1–3 per cent’ would, in this context, be considered ‘material’ (and, as such, should be raised with the claimant), ‘the decisionin Montgomery… is not authority for the proposition that medical practitioners need to warn about risks which are theoretical’ or ‘background’, as was the case here (Dingeman J at [90], [101]).39Inevitably, perhaps, many legal arguments have been made, and much judicial and academic ink40has been spilt, since Montgomeryas doctors, lawyers and their clients attempt to work out its impact on clinical practice.41What is clear is that Bolamis far from dead. It continues to inform both stages of the Montgomerytest (see e.g. Grimstonev Epsom and St Helier University Hospitals NHS Trust[2015]; Bayleyv George Eliot Hospital[2017]; Duce; Diamondv Royal Devon and Exeter NHS Foundation Trust[2019] EWCA p. 245↵Civ 585; Bradyv Southend University Hospital NHS FoundationTrust[2020]). Nor has Montgomerybeen confined to consent cases (as was originally thought). Its principles have been applied in cases where treatment in general is in question (see e.g. Websterv Burton Hospitals NHS Foundation Trust[2017]), to the duty to inform a patient of the need for follow-up treatment (Gallardov Imperial College Healthcare Trust[2017]) and outside a medical context in O’Harev Coutts & Co[2016] in which the defendant, a private bank, was found to owe a duty to take reasonable care to warn its customers of risks relating to suggested investments (although, on the facts, it had not breached that duty).8.4 Setting the standard of careHaving determined that the courts generally apply a common standard, we now need to consider how the courts go about settingthat standard. While the courts do not (usually) take into account the characteristics of the individual defendant, they do take into account the circumstances of the situation in which the accident or injury occurred. The standard of care does not exist in the abstract:‘The law in all cases exacts a degree of care commensurate with the risk’ (Lord Macmillan, Readv Lyons Co Ltd[1947] at 173).
When seeking to define the standard of care required of the defendant—that is, what the defendant oughtto have done or what is reasonablein the circumstances of the case—the courts take a number of factors into account: probability or risk of the injury; the seriousness of the injury; the cost of taking precautions; and the social value of the activity. So, if we ask what is a reasonable speed to drive, the answer will vary—the reasonable car driver will drive at different speeds at different times and according to different circumstances.42Some examples may help here. All things being equal, it is reasonable to drive at 70 mph on a clear motorway but not on residential streets. It will be reasonable to drive faster in clear weather conditions than when it is pouring with rain or foggy. Why is this? The answer is straightforward. The risks posed by driving at 70 mph in a residential street are higher than those on a clear motorway. Similarly, accidents are more likely to occur in adverse weather conditions. The reasonable driver may be expected to take more care when driving near a school, where potential injuries may not only be more likely (e.g. a child running out from behind a parked car) but more severe (a child is more likely to be more seriously injured than an adult if hit by a car) than if, say, they have an injured friend in the back of their car who they are rushing to hospital (where the social utility of their act may outweigh the risks it creates).Thus, in Wooldridgev Sumner[1963], for example, a photographer who was injured while working atthe National Horse Show was unable to recover for the serious injuries he suffered when one of the riders he was photographing had come round the corner of the arena at excessive speed causing the horse to become temporarily out of control. Rejecting his claim, the Court of Appeal held that ‘[t]he law of negligence has always p. 246↵recognised that the standard of care which a reasonable man will exercise depends upon the conditions under which the decision to avoid the act or omission relied upon as negligence has to be taken’ (Diplock LJ at 67). In the absence of recklessness or an intention to harm the claimant, the horse rider was free to concentrate on winning the competition.8.4.1 Probability that the injury will occurOne of the first factors the courts will take into account is likelihood of the injury occurring. The general rule is the more likely—or foreseeable—the outcome, the greater the possibility that the courts will find the defendants liable for failing to take steps to avoid it.Boltonv Stone[1951] AC 850 (HL)The claimant was hit on the head outside her house by a cricket ball hit by a player from an adjacent cricket pitch. The hit was substantial, although possibly not exceptional. The ball had travelled some 100 yards (approx 91 m) and over a seven-foot fence (which, due to the slope of the pitch, was in effect 17 feet high). The claimant sued in negligence and nuisance.The House of Lords, rejecting both claims,43held that although there was evidence that over a periodof years balls had been hit out of the ground, this was, in fact, very rare. It had happened six times in 30 years. Thus, although the possibility of a ball being hit out of the ground was foreseeable, this wasnot sufficient to establish negligence since the chances of the ball hitting someone were so low that areasonable person would not have taken precautions to stop it happening.The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk … He takesprecautions against risks which are reasonably likely to happen … there are many footpaths and highways adjacent to cricket grounds and golf courses on to which cricket and golf balls are occasionally driven, but such risks are habitually treated both by the owners and committees of such
cricket and golf courses and by the pedestrians who use the adjacent footpaths and highways as negligible and it is not, in my opinion, actionable negligence not to take precautions to avoid such risks. (Lord Oaksey at 863)44Thus, in Richardsv London Borough of Bromley[2012], the Court of Appeal held that an injury suffered by a school pupil (who had injured her heel when leaving the school through a pair of swing doors) was not reasonably foreseeable. Though there had been one incident four months earlier, thiswas only superficially similar to the accident in question and ‘[i]n any event the trivial nature of the earlier incident and the risk which it brought to light, seen in p. 247↵the context of thirty years’ safe use of the doors by thousands of children and staff, rendered reasonable both the nature of the remedial action which the school authorities proposed to take and the timescale within which they proposed to do it’ (at [14]).In Perryv Harris[2008], a child suffered severe and permanent injuries while using a bouncy castle ather friend’s birthday party. Finding for the defendant, the parents who had hired the bouncy castle, Lord Phillips CJ held that ‘the standard of care she was required to show was that which a reasonablycareful parent would show for her own children’ (at [37]). And that in setting the standard of care what mattered was not merely whether someharm was foreseeable but also the severityof the foreseeable harm:A reasonable parent could foresee that if children indulged in boisterous behaviour on a bouncy castle, there would be a risk that, sooner or later, one child might collide with another and cause thatchild some physical injury of a type that can be an incident of some contact sports. We do not consider that it was reasonably foreseeable that such injury would be likely to be serious, let alone assevere as the injury sustained by the claimant. (Lord Phillips CJ at [38])This was followed in the similar case of Cockbillv Riley[2013] in which the claimant fractured his spine resulting in incomplete tetraplegia after entering a paddling pool (it was not clear how he had done so) while at a party to celebrate the end of his GCSEs. The court held that it was notreasonably foreseeable that someone would attempt to carry out a dive or a belly-flop and thus suffer grave injury and so the defendant was not in breach of his duty of care to the claimant.It is also clear from the cases that the conduct of the defendant is assessed at the time of the alleged breach; it is a test of foresight, not hindsight (Roev Ministry of Health[1954]). If something seems to be acceptable at the time—that is, if the risk of injury is low—then it is unlikely to be considered negligent.Roev Ministry of Health[1954] 2 QB 66 (CA)The claimants were paralysed after being injected with contaminated nupercaine (a spinal anaesthetic) during a routine, minor operation. The nupercaine had been contained in sealed glass ampoules and stored in a solution of phenol prior to use. Unknown to the hospital, the phenol had percolated into the ampoules through invisible cracks or molecular flaws, causing the claimants’ paralysis.Rejecting the claims, the Court of Appeal held that, though it was clear in hindsight that the hospital was at fault, at the time of the operationneither the anaesthetist nor any of the hospital staff knew of the dangers of storing glass ampoules in the phenol solution. The test applied was the standard of medical knowledge when the accident occurred in 1947: ‘We must not look at the 1947 accident with 1954 spectacles’. (Denning LJ at 84)
The approach in Roewas affirmed in Williamsv University of Birmingham[2011]. The widow of a former physics undergraduate, who had conducted experiments in an asbestos-lagged service tunnelunder the science department at the University of Birmingham and who had since died of malignant mesothelioma in his left lung, p. 248↵brought a claim against the university in negligence. The university admitted that the claimant’s husband would have been exposed to asbestos as a student, but argued that the exposure was too small to ground a claim. Rejecting the claim, Atkins LJ (giving the leading judgment) adapted Denning LJ’s ‘graphic phrase’, to argue that ‘we must not look at whathappened in the tunnel in 1974 through 2009 or 2011 spectacles’ (at [38]). The state of the lagging was not such as should have alerted the university to a reasonably foreseeable risk that people using the tunnel might be exposed to an unacceptable risk of an asbestos-related injury (at [60]–[61]).Pause for reflectionA leading medical textbook published in 1951 (after the accident which formed the basis of the claimin Roe) warns medical practitioners to ‘never place ampoules of local anaesthetic solution in alcohol or spirit. This common practice is probably responsible for some cases of permanent paralysis reported after spinal analgesia’ (Roeat 86). However, despite this significant societal benefit—it was the injuries suffered by the claimants in Roewhich first alerted the medical profession to this particular danger—the effect of the Court of Appeal’s decision was that the full costor burden of thismedical advance was borne solely by the unfortunate men. This apparent injustice was justified by Denning LJ thus:[W]e should be doing a disservice to the community at large if we impose liability on hospitals and doctors for everything that happens to go wrong … Initiatives would be stifled and confidence shaken… We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. (at 87)Do you agree? Compare Denning LJ’s reasoning here with that in Nettleship—why do you think he adopted such a markedly different approach in this case?For pointers on how to answer the questions posed in this Pause for reflection box go to the online resources.8.4.2 Seriousness of the injuryThe second factor the courts take into account is the seriousness of the injury should it occur. Generally, the more serious the potential injury, the more likely the defendant will be found to have fallen below the required standard of care should it materialise: ‘the law expects of a man a great deal more care in carrying a pound of dynamite than a pound of butter’ (Singleton LJ, quoting Percy H Winfield, in Beckettv Newalls Insulation Co Ltd[1953] at 15). In Parisv Stepney Borough Council[1951], for example, the claimant, a garage hand, suffered serious injury when a metal chip flew into one of his eyes while he was working. Unfortunately, he was already (as his employers knew) blind in his other eye. The injury, therefore, left him effectively blind. He sued his employers, claiming they were negligent in failing to provide safety goggles and to require their use as part of a safe system of work.45The majority of the House of Lords agreed. Though the chance of injury was low, the seriousness of the consequences should an accident occur must p. 249↵also be taken into account when assessing the precautions a reasonable employer should take to ensure the safety of their workforce. The provision of safety goggles was ‘obviously necessary when a one-eyed man was put to [this] kind of work’ (at 383).
Similarly, in Overseas Tankship (UK) Ltdv Miller Steamship Co Pty Ltd (The Wagon Mound) (No 2)[1967] the defendants carelessly transferred furnace oil from a nearby wharf onto a vessel, the Wagon Mound, which was moored in Sydney Harbour, causing a large quantity of the oil to spill into the harbour where it accumulated around the wharf and the claimants’ vessels. The owners of the wharf were carrying out repairs on the claimants’ ships which caused pieces of hot metal to fly off and into the wharf. On one such occasion it is thought that the metal fell onto an object supporting a piece of inflammable material in the oil-covered water, which subsequently ignited. Thiscaused the oil to catch alight and the ensuing fire quickly destroyed the wharf and the claimants’ vessels. The Privy Council held that although the chance of the oil catching fire was very low it was nevertheless a real one and, given the very grave consequences should the risk materialise, there was no justification for the defendant’s failure to take steps to eliminate it given how easy it was for them to prevent the spillage (had they taken reasonable care in the first place when filling up the vessel). On this basis, the defendants had fallen below the standard of care required—the reasonableman would have taken precautions.If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched … then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense. (at 643–4)468.4.3 Cost of taking precautionsThe courts also consider the cost to the defendant of taking precautions against the risk. The lower the cost—whether in terms of time or money—the more reasonable it is that someone should take precautions. Thus, it is likely (all things being equal) that the courts would consider a driver who fails to slow down while driving near a school at the end of the school day to have fallen below the standard of care required of a reasonable driver; the cost to the driver of driving more slowly is unlikely to be seen as unreasonably high. If, on the other hand, the cost of taking precautions is very onerous, it is less likely that it will be considered reasonable for the defendants to bear such costs—especially, but not only, when the risk of injury is low (Latimerv AEC Ltd[1953]).Traditionally the courts have been reluctant to interfere with the budgetary decisions made in relation to limited resources by public authorities. In Knightv Home Office[1990], a mentally ill prisoner committed suicide. As a known suicide risk, he had been observed every 15 minutes. The court recognised that while lack of funds could never p. 250↵be a complete defence to insufficient safety precautions, the facilities of a prison hospital were necessarily different to a specialist psychiatric hospital and so, on the facts, there was no breach of the prison officers’ duty of care. However, in 2019, the Court of Appeal in Goldscheiderv Royal Opera House Covent Garden Foundation[2019] found the Royal Opera House (ROH), a charity based in Covent Garden, London, liable for the injuries suffered by one of its performers. The claimant, a viola player in the orchestra of the ROH, was able to recover for the damage caused to his hearing as a result by being placed too close to the trumpet section in the orchestra ‘pit’ in breach of the Control of Noise at Work Regulations 2005. Regulation 6(1) states ‘(1) The employer shall ensure that risk from the exposure of his employees to noise is either eliminated at source or, where this is not reasonably practicable, reduced to as low a level as is reasonably practicable’. McCombe and Bean LJJ in the Court of Appeal,rejecting the ROH’s appeal, held that despite undertaking a risk assessment and providing performers with ear plugs and training, it had failed to take ‘all reasonably practical steps’ to protect the claimant’s hearing. They continued:
[O]ne might have expected evidence on the following lines. Firstly, it might have been shown that [high noise] level … is regularly reached in public performances of Wagner operas at the ROH whatever the configuration of the pit, whatever the number of brass instruments used and whoever is conducting. Secondly, evidence might have been led to show that to keep within the upper [noise limits] … EAV [exposure action value] would mean that Wagner could not be performed at all at the ROH, or that his works could be performed only in a way which would compromise artistic standards to an unacceptable extent. Thirdly, the defendant might have attempted to prove that the only way in which the rehearsals could have been scheduled is on the basis of six hours rehearsal per day on consecutive days, with no consideration being given to whether it was essential for the loudest passages to be played again and again throughout the day at full volume. It is in our judgment particularly significant that the pit was [later] reconfigured … with the brass instruments being split up. There is no evidence that this caused an unacceptable reduction (or indeed any reduction at all) in the artistic standards of … [the Wagner opera the claimant was performing] when it came to be performed in public. Alterations made by defendants after a workplace accident do not necessarily demonstrate liability retrospectively, but they do make it very difficult for the defendant to prove that all reasonably practicable steps had already been taken. (at [41]–[42])8.4.4 Social value of the activityWhile an assessment of the ‘cost of taking precautions’ goes to the privatecosts of adhering to a particular standard of care imposed on the individual, this final factor relates to the socialcosts of the activity. The greater the social value of the activity, the more likely the courts will find it reasonable to have dispensed with safety precautions.While there is no special exemption for any of the emergency services from the law of negligence (the question remains whether the defendant has behaved as a reasonable man), the court will take into account the emergency in which the defendant is acting. The standard of care will usually therefore be lower where the defendant is acting in the ‘heat of the moment’ or in an emergency or rescue situation.p. 251Wattv Hertfordshire County Council[1954] 1 WLR 835 (CA)A fireman was seriously injured by heavy lifting-gear while travelling in the back of a lorry on the wayto an accident where a woman was trapped under a vehicle. The lorry had not been specially fitted to carry the gear in an emergency.The Court of Appeal, rejecting the fireman’s claim, held that the public benefit justified taking the risks associated with failing to adequately secure the lifting-gear in the back of the lorry:It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved … The saving of life or limb justifies taking considerable risk. (Denning LJ at 838)If, therefore, the same accident had occurred in pursuit of a commercial end then the claimant wouldhave recovered: ‘the commercial end to make a profit is very different from the human end to save life or limb’ (at 838).47But what about other ‘socially valuable’ activities such as sports events48or games between children?In the context of sporting events,
the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race [or game or match]. Such are no more than incidents inherent in the nature of the sport. (HHJ Walden-Smith, Tylickiv Gibbons[2021] at [26] referring to Holland J in Caldwell)Liability is ‘fact specific’ and ‘cannot be resolved in a vacuum’ (Caldwellv Maguire[2002] at [30]). In Condonv Basi[1985], the first case to consider the standard of care relating to players in the context of competitive sports, the claimant was injured by a ‘reckless and dangerous’ sliding tackle during a Sunday league football game. The trial judge held that the tackle amounted to ‘serious and dangerous foul play which showed a reckless disregard of the Plaintiff’s safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game’. Upholding this decision, Sir John Donaldson MR confirmed that the objective standard of care was to be assessed in context: ‘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’. This was followed in Fulham Football Clubv Jones[2022]. The claimant suffered a career-ending injury as the result of being tackled by the defendant during an p. 252↵under-18 football match. Finding for the defendant,Lane J held that in determining the relevant standard of care in a negligence claim in the context of sports injuries the court will have regard to the context and realities of the relevant sport and that the standard of care for establishing liability in negligence is ‘materially higher’ than a mere breach of the rules of the game (the referee in this case had not awarded a foul and allowed play to continue).This approach has also been adopted outside the context of organised sports. In Blakev Galloway[2004], for example, a teenager was injured while playing a ‘game’ which involved throwing bark and twigs at each other. The Court of Appeal held that there had been no breach of duty:If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimant’s head, then there might have been a breach of the duty of care. But what happened here was, at its highest, ‘an error of judgment or lapse of skill’ (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged … This was a most unfortunate accident, but it was just that. Young persons will always want to play vigorous games and indulge in horseplay, and from time to time accidents will occur and injuries will be caused. But, broadly speaking, the victims of such accidents will usually not be able to recover damages unless they can show that the injury has been caused by a failure to take care which amounts to recklessness or a very high degree of carelessness, or that it was caused deliberately (i.e. with intent to cause harm). (Dyson LJ at [15], [25])However, it is clear following Scout Associationv Barnes[2010] that the social value of an activity as a wholedoes not mean that allexamples of that activity are acceptable, whatever the risk:Of course, the law of tort must not interfere with activities just because they carry some risk. Of course, the law of tort must not stamp out socially desirable activities. But whether the social benefitof an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach. (Smith LJ at [49])
In Barnes, the claimant was injured while playing a game called ‘Objects in the Dark’ which involved running around a pile of wooden blocks in a scout hall and attempting to grab a block once the lights were switched off (with only minimal lighting provided by emergency exit lights). The majority of the Court of Appeal upheld the trial judge’s decision that the defendant had breached its duty—the value of playing the game in the dark as a way of adding ‘spice’ to increase the boys’ enjoyment of the game did not justify the additional risk:[T]he particular justification for playing this game in the dark was only that it added excitement. The darkness did not add any other social or educative value but it did significantly increase the risk of injury … the added excitement of playing the game in the dark, which might well encourage boys to attend scouts—a desirable objective—did not justify the increased foreseeable risk. (Smith LJ at 46)p. 253Pause for reflectionThough it is clear from the majority judgments in Barnes that the trial judge had appropriately weighed the costs and benefits of the competing factors at issue in the case, there is considerable force in Ward LJ’s dissenting opening paragraph:I have to confess that I have found it uncommonly difficult to reach a confident judgment in this case.Here was a big strong thirteen year old lad, well-used to rough and tumble, playing rugby with distinction for his county, ever ready to take the bumps and the bruises, ever willingly to put his bodyon the line for the thrill of his sport. For him, you get hurt, you get up, and you get on with it. He brought the same enthusiasm and competitive instincts to his participation in his local Scout troop. He was the least likely boy to need wrapping in cotton wool. So, is awarding him damages for an injury suffered playing the game, ‘Objects in the Dark’, not an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise? Is this a decision which emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves? Where do you draw the line? I have found that hard to answer. (at [50])Do you think that the majority drew the line correctly in this case? To what extent, if at all, can it be reconciled with the decision in Blakev Galloway?8.5 A balancing actIn Tomlinsonv Congleton Borough Council[2003]Lord Hoffmann suggests that:the question of what amounts to ‘such care as is in all the circumstances of the case is reasonable’ depends upon assessing … not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measure. These factors have to be balanced against each other. (at [34])In essence, in determining the standard of care required by the defendant the court is faced with a balancing act where no one factor is viewed in isolation from the others. In each case the courts weigh up the likelihood of injury and the seriousness of harm against the cost of taking precautions and the social value of the activity before coming to a decision as to what was reasonable in all the circumstances of the case—that is, what the reasonable man would have done.This process through which the courts distinguish between acceptable and unacceptable carelessness—that is, the balancing of the probability (P) and likely seriousness of injury (L) against the private and social costs49(B) of the necessary precautions—was p. 254↵reduced to a quasi-mathematical formula by a US judge named Learned Hand (in United Statesv Carroll Towing Co[1947]).
The so-called ‘Learned Hand test’ (see Figure8.1) holds that where the private and social costs of taking precautions (B) is less than the probability (P) multiplied by the likelihood of injury (L), the defendant will be held to have fallen below the standard of care of the reasonable man if they fail to take such precautions. Conversely, where the costs of taking precautions (B) are greater than the probability (P) multiplied by the seriousness of the injury (L) occurring, it would be unreasonable to expect the defendant to take such precautions.Open in new tabFigure 8.1 The ‘Learned Hand test’Of course in reality few, if any, social interactions can be reduced to this formula. Nevertheless, the test remains a helpful illustrationof the sort of balancing exercises the courts are undertaking when setting the appropriate standard of care in all the circumstances of the case.CounterpointThe Learned Hand test is essentially an economic one: ‘If it can be shown that expenditure of £X on avoiding or minimising the risk of an accident will prevent accident costs of £X + Y, then it is clearly desirable that £X should be spent. On the other hand, it is said, there is no point in spending £X to prevent accident costs which are less than £X’.50This reduction of value of life and limb to a mathematical formula is described by Joanne Conaghan and Wade Mansell as ‘ideologically objectionable in its shallow and impoverished view of human activity’.51Do you agree? Consider the US case of Grimshawv Ford Motor Company[1981], discussed in Chapter12.8.5.1 Parliamentary interventionsIn recent years, successive governments have made various (unnecessary) interventions in an effort to address the perceptionof a growing compensation culture in the UK.52The Compensation Act 2006 is one example. Speaking in 2005, the then Prime Minister, Tony Blair, suggested its purpose was to:p. 255↵clarify the existing common law on negligence to make clear that there is no liability in negligence foruntoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill… This will send a strong signal and it will also reduce risk-averse behaviour by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers and local authorities.53To this end, section 1 determines that the courts when considering a claim in negligence or breach ofstatutory duty may‘have regard to’ the wider impact of their assessment of the appropriate standard of care in a particular case. In particular, whether a requirement to take those steps might:
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or (b) discourage persons from undertaking functions in connection with a desirable activity. Of course, this adds little to our understanding of the tort of negligence. As Jackson LJ in Barnesnotes, itsimply restates what we already know, that:the function of the law of tort [is] to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities. (at [34])54But what ‘desirable’ activities does this include? The Act’s remit clearly extends to injuries caused while scouting, on school trips, as well as the playing of sports and games and the provision of public amenities more generally. But does it apply to injuries sustained while in a military zone? Hoppsv Mott MacDonald Ltd[2009] suggests that it does. The claimant, a civilian electrical engineer, lost his shoulder when he was hit by an improvised explosive device (IED) while travelling on a road known as ‘bomb alley’ in a civilian vehicle while working on rebuilding projects in Iraq following the invasion in 2003 (at [93]).55He sued his employers and the Ministry of Defence who were responsible for his security. The judge, while acknowledging the claimant’s contribution ‘at much personal cost … to improving the lot of the Iraqi people’ (at [133]) rejected his claim. Referring to section 1 of the Compensation Act, the judge held that given the small risk of injury and desirability of the rebuilding work, it was not unreasonable for the claimant to have been carried around in an unarmoured (civilian) vehicle.The Social Action, Responsibility and Heroism Act 2015 was intended to work alongside the Compensation Act 2006 to buttress the law of negligence. Just 176 words long and enacted as part ofthe Coalition Government’s ‘wider programme to encourage participation in civil society and … a specific commitment to “take a range of measures to encourage volunteering and involvement in social action”’,56it lists three matters—social action, responsibility and heroism—to which a court must have regard in determining a claim in negligence or breach of statutory duty. Save for a passing reference in the unrelated case of Longv Elegant Resorts Ltd[2021]57it is yet to be applied in a reported case.p. 256↵Watch our video ‘Where Angels Fear to Tread: Unnecessarily law-making and the Social Action, Responsibility and Heroism Act 2015’ where we look at what the 2015 Act tells us about what happens when Parliament steps in to ‘fix’ a non-existent problem.PlayMuteLoaded: 3.78%Remaining Time -4:20CaptionsQuality LevelsFullscreenVideo 8.1: Where Angels Fear to Tread: Unnecessarily law-making and the Social Action, Responsibility and Heroism Act 20158.6 Establishing breach
You will remember that in order to establish whether the defendant has breached their duty of care two questions need to be considered:(1)How the defendant oughtto have behaved in the circumstances—what was the required standard ofcare in these circumstances?(2)How the defendant didbehave—did they fall below the standard of care required?So far, this chapter has concentrated solely on the first of these questions. The second question—that is, proof of negligence—is largely a question of fact to be determined by the court on the evidence before them. The burden is on the claimant to establish, on the balance of probabilities—that is, that it is more likely than not—that the defendant’s actions fell below the required standard of care.58At times this can be extremely difficult. In many cases the claimant will have to rely on the defendantreleasing certain information to them (which they are unlikely, understandably, to be willing to do) orthe information may be highly technical or simply very dense. The latter is particularly so in relation to litigation arising out of a defective drug where it can be very time-consuming and expensive to sift through the scientific and medical evidence.59Things are slightly more straightforward in relation to road traffic accidents. Section 11 of the Civil Evidence Act 1968 shifts the burden of proof onto the defendant to show that he was notnegligent and that his conduct (although criminal) does not amount to civil negligence. While a criminal conviction (or breach of the Highway Code (Brownv Paterson[2010])) does not automatically establish negligence, it is admissible in civil proceedings as prima facie evidence of negligence. It is highly likely, therefore, that a driver who, for example, is convicted of injuring another by their careless driving, will also be found to be negligent.60The courts may also infer negligence from the circumstances in which the accident or injury took place. This process is usually described by the phrase res ipsa loquiturmeaning ‘the thing speaks for itself’. Academics disagree on the precise status of the ‘doctrine’.61p. 257↵Some argue that it simply reflects the common-sense view that sometimes the likelihood that the accident was caused by the defendant’s negligence is such that it is not necessary to explain it, while others suggest that it is a more formal doctrine which, in certain circumstances, shifts the burden of proof from the claimant to the defendant (meaning that they will be liable if they are unable to prove, on the balance of probabilities, the absenceof fault on their part). Most agree that this latter view goes too far. We prefer the view of Jenny Steele who describes res ipsa loquituras not so much a doctrine ‘so much asa complex name for a common-sense inference from the facts’.62So understood, res ipsa loquiturdoes notshift or reverse the burden of proof onto the defendant. It simply means that sometimes the circumstances of the negligence can be evidence of carelessness. As such it is a welcome and effective means of redressing the balance of power between claimant and defendant where evidential difficulties make it hard for the claimant to establish negligence.Whatever its status, the ‘doctrine’ stems from the judgment of Erle CJ in Scottv London and St Katherine Docks Co[1895] where, in response to the claimant’s failure to explain how his injury occurred, he stated:There must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of
things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation of the defendant, that the accident arose from want of care. (at 601)Two things need to be met in order for the rule to come into play (although these often run together). First, the thing which caused the accident needs to be ‘under the management of the defendant, or his servants’, that is, the defendant needs to have control of the thing that caused the injury. A defendant will not be liable if, for example, someone steals their car and causes an accident or for a hotel guest throwing furniture out of a hotel window (Larsonv St Francis Hotel[1948]). Secondly, the accident must be such as ‘in the ordinary course of things, does not happen if those who have the management of the [things] use proper care’. This, largely, depends on the circumstances of the case—it will be easier to prove negligence if you slip on a wet floor near a swimming pool or gym (where the occupiers may be expected to know that the floor might be wet and take appropriate precautions) than in a shopping centre (Wardv Tesco Stores Ltd[1976]). The question for the court is whether the evidence taken as a whole points in the direction of the defendant’s negligence. Thus, where the defendant is unable to explain how the accident occurred but is able to show that they exercised all reasonable care in the circumstances, they will not be found liable (Jv North Lincolnshire County Council[2000]).3.2 Was there a breach? Falling below standardsThe basic rule is that the burden is on the claimant to establish that there has been a breach of duty. The standard of proof is the balance of probabilities. In some cases, such as road traffic accidents, the defendant may already have been convicted of a criminal offence in respect of the same set of facts. The Civil Evidence Act 1968, s 11 provides that in such circumstances the criminal conviction can be used to provide strong, although not conclusive, evidence that the defendant has been negligent.3.2.1 Res ipsa loquiturThis Latin phrase means ‘the thing speaks for itself’. In some cases the claimant will be significantly handicapped in his efforts to prove negligence on the balance of probabilities. In these circumstancesthe court may effectively give the claimant the benefit of the doubt by inferring negligence from what is known, in the absence of convincing evidence to the contrary.p. 78↵Three elements must be present before the case is an appropriate one in which to apply res ipsa loquitur.(1)The accident must be of the kind which does not normally happen in the absence of negligence.Examples would be two trains colliding or a surgeon removing the wrong kidney from a patient. An early such case is Scott v London and St Katherine’s Dock Co(1865), where the plaintiff was hit by some bags of sugar which fell out of the window of a warehouse onto his head!(2)The cause of the accident must have been under the defendant’s control.This element is directed not at the issue of lack of care but at the fairness of imposing liability on this defendant. In Gee v Metropolitan Railway Co(1873), res ipsa loquiturwas applied to an accident in which the door of a train flew open a few minutes after leaving the station, causing the plaintiff to
fall out. The train doors were presumed to have been the sole responsibility of the train company at the relevant time. However, in Easson v London & North Eastern Railway Co(1944), a similar accidenthappened near the end of a journey from London to Edinburgh. In this instance the court held that there would have been too many opportunities for others to tamper with the doors, so the ‘control’ condition was not met.(3)There must be no explanation of the cause of the accident.Res ipsa loquituris not relevant when there are sufficient facts known in order to prove negligence. This was the case in Barkway v South Wales Transport Co Ltd(1950). The plaintiff was injured when abus in which he was a passenger crashed. It was established that the cause of the crash was a burst tyre and that this would not have occurred had the defendants adopted a proper system of tyre inspection. In contrast, Thomas v Curley(2013) was a medical negligence case in which it was held that the trial judge had correctly refused to apply res ipsabecause there was sufficient information about how the injury had occurred.3.2.2 What is the effect of res ipsa loquitur?It allows the court to infer that the defendant has been negligent, but only in the absence of plausible evidence from the defendant of lack of negligence. Whether the court regards the evidenceas sufficient to rebut the inference of negligence will vary from case to case. It is important to remember, however, that the burden of proof does not shift from the claimant to the defendant; see Ng Chun Pui v Lee Chuen Tat(1988).Thinking PointWhat would be the advantages of res ipsa loquiturto a claimant in a medical negligence case? On theother hand, what would be the drawbacks to relying on it?In Ward v Tesco Stores(1976), yoghurt on the floor of the defendant’s supermarket caused the claimant to slip and suffer injury. Res ipsa loquiturapplied because the accident was of the type which does not happen when reasonable care is taken, the floor was the responsibility of the defendants, and there was no evidence as to how the yoghurt came to be on the floor. The evidence offered by the defendants about procedures for keeping the floors clean was not sufficient to displace the inference of negligence and they were liable. Megaw LJ in the Court of Appeal explainedthe outcome as follows:It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the learned judge was wholly right in taking that view of the presence of thisslippery liquid on the floor of the supermarket in the circumstances of this case; that is that the defendants knew or should have known that it was a not uncommon p. 79↵occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they show that the accident must have happened, or even on balance of probability would have been likely to have happened, irrespective of the existence of a proper and adequate system, in relation to the circumstances, to provide for thesafety of customers. But, if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence which is given or is not given, this accident would have been at least equally likely to have happened despite a
proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do.Res ipsa loquiturwas held to be applicable to an air crash, by the Privy Council in George v Eagle Air Services(2009). The three requirements were fulfilled: planes do not normally crash; the defendants had control over the aircraft, its flight, and pilot; and they had failed to give any explanation which was at least consistent with the absence of fault on their part. The defendants having failed to displace the inference of negligence, the claimants were successful.