Standard of Care and Breach

• Proving Negligence:

  • The burden of proof remains on the claimant, but sometimes merely need to show the facts of the case, Res ipsa loquitur – ‘the thing speaks for itself’

  • E.g. 7 inch scissors left inside the patient (2004 Australian case)

• Key is the idea of reasonableness

  • Hall v Brooklands Auto Racing Club [1933] – owned car race track. Spectators admitted on payment to view in stands. Two cars collided. One was flung into the air over barrier into the stand killing two and injuring others.

    • Held club was under no duty to guard against risks that were not reasonably foreseeable, or which were innate to the activity of which C was a spectator.

    • per Greer LJ: Sometimes described as "the man in the street," or "the man in the Clapham omnibus," or, as I recently read in an American author, “the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves”’

• Two standards

  • Basic (reeasonable man) standard applies in cases of something ordinarily undertaken by ordinary men.

  • Professional (Bolam) standard applies in cases where the action is specialised and performed by professionals.

• The basic standard is fixed for everyone, irrespective of age or relative experience

  • Nettleship v Weston (1971) – learner driver held to same standard as an experienced driver.

  • Phillips v Whiteley (1938) – a jeweller does not need to reach the standard of a surgeon when piercing ears.

  • Wells v Cooper (1958) – Fixed handle to his rear door. Visiting tradesman injured himself. A man doing DIY does not need to reach the standard of a master carpenter.

• Some judicial discretion can/dopes occur as to this standard

  • Miller v Jackson (1977) – Some judicial discretion. Claimants bought a house near a cricket ground – they found after they bought the house cricket balls were being hit into the garden, they thought this was unsafe.

    • They argued it was unreasonable for the cricket club to continue playing there due to the risk of injury of persons or property.

    • Denning LJ (dissenting on negligence): “In summertime village cricket is the delight of everyone…”

    • Damages awarded, injunction rejected.

• A lower standard does apply to children

  • Though there is no legal definition of a child per se.

  • Mullin v Richards [1998] – Two 15-year-old school girls were fighting with plastic rulers. A ruler snapped and a splinter went into one of the girls’ eyes causing blindness. Tried to sue other girl.

    • No breach as the girl was only expected to meet the standard of a reasonable 15-year-old school girl not that of a reasonable man.

  • Orchard v Lee [2009] – School dinner lady sustained injuries when a 13-year-old boy ran backwards into her while playing a game of tag. She sued the boy in the tort of negligence

    • The Court of Appeal held that the boy had not breached his duty of care, and so was not liable.

• A different standard may apply to public authorities

  • Knight v Home Office [1990] – Prison authority sued for failing to prevent a prisoner committing suicide in prison hospital. Standard of care below that of NHS

    • Court held with public authorities resources are limited, and a matter of parliament to dictate allocation of resources.

• The standard may also be adjusted to account for physical and mental impairments

  • Roberts v Ramsbottom (1980) – D suffered a stroke while driving. Driver was aware he felt odd but continued to drive and as a result hit several cars and then a pedestrian.

    • Held liable in negligence as he retained some, though impaired, control of his actions. A reasonable driver would have stopped the car.

  • Mansfield v Weetabix (1997) – D suffered from hypoglycaemia and crashed into Claimants shop. The driver had not realised that his ability to drive had been impaired.

    • No breach as the standard was that of a reasonably competent driver who did not realise his ability had been impaired.

  • Dunnage v Randall (2015) – Insanity is not a defence to tort

    • D was mental ill and set fire to flat with himself and claimant inside.

    • The standard of care was adjusted, but D could not escape liability entirely on grounds of disability if he breaches the expected standarsd.

• The Foreseeability of the Harm

  • Courts put themselves in the position of the defendant at eh time of the breach to see if there was a reasonable risk of harm.

  • Roe v Minister of Health [1954] – Alleged negligence by hospitals. Two claimants had been given an contaminated anaesthetic for minor operations leading to permanent paralysis.

    • Anaesthetic had been stored in glass ampoules with micro-cracks in them leading to contamination. At the time it was not known that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.

    • Held that hospital could not have foreseen harm and had behaved reasonably.

    • Denning LJ. "We must not look at the 1947 incident with 1954 spectacles."

• Magnitude of the Potential Harm

  • If reasonably foreseeable there is a large risk, then running the risk is objectively liable.

  • Two aspects

    • Reasonably foreseeable risk of harm

    • Reasonably foreseeable risk of degree of harm

• Risk of Harm per se

  • Bolton v Stone [1951] – Stone was injured when cricket ball hit her outside home.

    • She brought an action against the cricket club in nuisance and negligence. A witness who lived in the same road as the claimant but close to pitch said that five or six times during the last 30 years he had known balls hit his house or come into the yard. Agreed it was an exceptional shot.

    • No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances.

  • Compare: Miller v Jackson [1977] – Eight balls a year were being hit in the vicinity of the claimant’s house.

    • Damages awarded.

• Risk of Serious Harm

  • Paris v Stepney BC [1951] – The claimant only had sight in one eye due to in injury sustained in the war. Metal splinter hit his other eye...

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