3 In relation to the tort of negligence explain the standard of care owed by one person to another.
(10 marks) 3 Once a claimant has established that the defendant owes them a duty of care, they must then establish that the defendant has
actually breached that duty. The test for establishing breach of duty is an objective one and was set out in Blyth v Birmingham
Waterworks Co (1856). Thus a breach of duty occurs if the defendant:
... fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do; or does something which a prudent and reasonable man would not do.
The fact that the defendant has acted less skilfully than the reasonable man would expect will usually result in breach being
established. This is the case even where the defendant is inexperienced in his particular trade or activity. For example, a learner
driver must drive in the manner of a driver of skill, experience and care (Nettleship v Weston (1971)). It is, however, clear from
the case law that, depending on the age of the child, the standard of care expected from a child may be lower than that of an
adult. Children should be judged on whether they have the ‘foresight and prudence of a normal child of that age’ (see Mullin v Richards (1998)). The degree or standard of care to be exercised by such a person will vary, as there are factors, such as the age
of the claimant, which can increase the standard of care to be exercised by the defendant. The test is, therefore, flexible but the
following factors will be taken into consideration in determining the issue:
– The probability of injury
The degree of care must be balanced against the degree of risk involved if the defendant fails in his duty. It follows, therefore,
that the greater the risk of injury or the more likely it is to occur, the more the defendant will have to do to fulfil his duty. Thus
in Glasgow Corporation v Taylor (1992) the provision of a warning notice was not considered sufficient to absolve the
corporation from liability of injury sustained by young children eating poisonous berries in its park (See also In Bolton v Stone
(1951) where the likelihood of the injury occurring was small, as was the risk involved).
– The seriousness of the risk
The degree of care to be exercised by the defendant may be increased if the claimant is very young, old or less able bodied
in some way. The rule is that ‘you must take your victim as you find him’ (this is known as the egg-shell skull rule).
In Haley v London Electricity Board (1965) the defendants, in order to carry out repairs, had made a hole in the pavement.
The precautions taken by the Electricity Board were sufficient to safeguard a sighted person, but Haley, who was blind, fell
into the hole, striking his head on the pavement, and became deaf as a consequence. It was held that the Electricity Board
was in breach of its duty of care to pedestrians. It had failed to ensure that the excavation was safe for all pedestrians, not
just sighted persons. It was clearly not reasonably safe for blind persons, yet it was foreseeable that they may use this
pavement.
There are other cases in this field which should be referred to, for example, Gough v Thorne (1966), concerning young
children; Daly v Liverpool Corp (1939), concerning old people; and Paris v Stepney BC (1951), concerning disability (see
below).
– Cost and practicability
Any foreseeable risk has to be balanced against the measures necessary to eliminate it. If the cost of these measures far
outweighs the risk, the defendant will probably not be in breach of duty for failing to carry out those measures. Thus in
Latimer v AEC Ltd (1952) a factory belonging to AEC became flooded after an abnormally heavy rainstorm. The rain mixed
with oily deposits on the floor, making the floor very slippery. Sawdust was spread on the floor, but it was insufficient to cover
the whole area. Latimer, an employee, slipped on a part of the floor to which sawdust had not been applied. It was held that
AEC Ltd was not in breach of its duty to the plaintiff. It had taken all reasonable precautions and had eliminated the risk as
far as it practicably could without going so far as to close the factory. There was no evidence to suggest that the reasonably
prudent employer would have closed down the factory and, as far as the court was concerned, the cost of doing that far
outweighed the risk to the employees.
– Social benefit
The degree of risk has to be balanced against the social utility and importance of the defendant’s activity. For example in Watt
v Hertfordshire CC (1954), injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation, was not
accepted as being the result of a breach of duty of care as in the circumstances time was not available to take the measures
that would have removed the risk.
– Common practice
Actions in line with common practice or custom, may be sufficient to meet the expected standard of care, except, of course,
where the common practice is in itself negligent. Thus in Paris v Stepney BC (1951) not wearing safety glasses in a foundry
was common practice but it was in itself essentially negligent and the defendant could rely on it as a defence.
– Skilled persons
Individuals who hold themselves out as having particular skills are not judged against the standard of the reasonable person,
but the reasonable person possessing the same professional skill as they purport to have. In Roe v Minister of Health (1954),
a patient was paralysed after being given a spinal injection. This occurred because the fluid being injected had become
contaminated with the storage liquid, which had seeped through minute cracks in the phials. It was held that there was no
breach of duty, since the doctor who administered the injection had no way of detecting the contamination at that time. | 
发表于 2008-10-11 12:44
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