Objective Standard:
The assessment for a breach of duty uses the objective standard of a ‘reasonable person’.
In Vaughan v Menlove, M built a haystack near the boundary of V’s land. The haystack caught on fire, setting some of V’s property on fire. V sues for negligence. Haystacks often set fire, which M knew but chose to ‘chance it’. M argued that he should not be liable for his own stupidity, arguing for a subjective standard. The court favours an approach of ‘ordinary prudence’, which is an objective standard.
In Nettleship v Weston, W asked their friend, N, for driving lessons. N agreed once W confirmed they had insurance. During one of the lessons, they crashed into a lamppost. N’s kneecap was broken and N sues W.
The CA holds W to objective standard of how people ought to drive, even though this is far from the standard of the average driver and N knew that W was an inexperienced driver.
Case heavily criticised.
Rationales for Objectivity:
Objections / Critical Theory:
The objective test makes assumptions about what is ‘ordinary’. This is problematic and discriminatory against marginalised groups. [4]
Adjusting the Standard:
Certain situations give rise to the defendant not being held to the objective standard. This often leaves the claimant without access to damages for the injury caused to them.
Disability:
There is inconsistency on whether a disability can adjust the objective standard for determining a breach of duty.
In Mansfield v Weetabix, D was a lorry driver for W. D suffered from malignant insulinoma (a diabetes-related illness) which meant that if he didn’t eat properly, he would lose brain functioning. D set off on a 50-mile journey without eating properly. He lost brain functioning and crashed into M’s shop.
The CA held that D was not in breach of duty as it would be unjust to hold him to the objective standard when he did not even know of the state he was in. M must rely on insurance.
In Dunnage v Randall, R has paranoid schizophrenia. R visited D’s house. R went back to his car to retrieve a magazine but returns with a can of petrol and a lighter, demanding that D ‘tell him the truth’. After a struggle, both D and R, covered in petrol, are set alight by R. R dies and D is seriously injured. D sues R’s estate. The CA refuse to lower the objective standard, allowing D to claim.
Childhood:
Liability for a breach of duty caused by a child depends on whether, and to what extent, they can perceive risk.
Varying Perception of Risk:
No Perception of Risk – No Liability
Some Perception of Risk – Intermediate Liability, compared to another child of ‘like age and intelligence’.
Perception of Risk Same as Adult – Liability Same as Adult
In McHale v Watson [Australian], M is blinded when she is strook with a thin metal rod thrown by W. W was 12 and alleges that he was aiming at a wooden post, which M happened to be standing next to. The court holds that a child of W’s age and intelligence would not have perceived the risk, so W is not liable.
In Mullin v Richards, M and R are play-fighting with plastic rulers. One of the rulers’ breaks, blinding M. The CA applies the test of whether an ‘ordinary and prudent 15-year-old schoolgirl’ would’ve perceived the risk. They conclude there is no breach.
This rule raises the question as to whether girls and boys should be subjected to differing standards because their maturity develops differently across puberty. This, in turn, raises the question of age.
Sports and Risky Activities:
Where risky activities are concerned, it is assumed that the claimant is aware of those inherent risks. It is only if the defendant shows ‘reckless disregard’ that the claimant may have a claim.
There is academic debate as to whether this merely adapts the objective standard or completely changes it.
Assumptions of Responsibility:
In cases where responsibility has been assumed, the standard depends on the information that the claimant has relied upon.
Duties to Act:
Sometimes negligence can impose positive duties to act, essentially making the defendant liable even for their omission to act.
The defendant only has to do the best they can in these circumstances.
Applying the Standard:
There are certain factors that affect the way that courts apply the objective standard.
A court should consider whether taking steps to achieve the standard of care would prevent a desirable activity from being undertaken or discourage people from undertaking functions related to the desirable activity in determining whether D took reasonable steps to meet the standard of care. [5]
Burden, Probability and Loss (BPL Analysis):
Burden of Precautions (Burden of Elimination of Risk):
The burden is how easy / expensive it would be to avoid the risk. The easier a risk is to mitigate, the more unreasonable it is to not do so.
Probability of Loss:
The more probable the loss, the more unreasonable it would be to cause said loss.
Gravity of the Loss:
The more serious the loss it, the more likely the defendant’s conduct is unreasonable.
Issues can arise where these 3 factors play off one another. A risk may have been very expensive for the defendant to mitigate against but may nonetheless be extremely probable and serious.
In US v Carroll Towing [USA], while the master (D) was away, his barge broke free and collided with another ship. The court held that D’s liability depended on the 3 factors in the circumstances.
If the Burden < Probability * Gravity, then D is liable. If the Burden > Probability * Gravity, then D can run the risk without liability.
This is controversial as it seems that the defendant can get away with running a risk, so long as the cost for them to do otherwise would be more than the incurred probable losses to the claimant. English law takes a slightly different approach to the US.
In Bolton v Stone, S was hit by a cricket ball while walking on a road. B argued that, while the event was reasonably foreseeable, the probability of this actually happening was very low. Held there was no breach of duty.
Reid LJ states that small risks (low Probability * Gravity) can be run, but substantial risks (high Probability * Gravity) cannot. He does not consider the burden of precautions.
In Latimer v AEC, the HL takes into account the burden of precautions.
In The Wagon Mound (No 2), a ship (TWM) was taking on fuel from Sydney Harbour. Some oil was spilled into the harbour, which was accidentally set alight by nearby welders. C sued TWM for damaged caused by the fire to their ship.
Reid LJ states that small risks (low Probability * Gravity) can be run if the Burden is high, but substantial risks (high Probability * Gravity) but small risks where the Burden is low cannot be run.
Rather vague.
Peculiarities:
The claimant’s peculiarities may affect the way the courts apply the objective standard and undertake the BPL analysis, providing these peculiarities are known to the defendant.
In Paris v Stepney BC, S failed to provide P with safety goggles. P was struck in the eyes and blinded in the only functioning eye they had (other eye already blinded), making them totally blind. As S knew that P only had 1 good eye, the gravity of the risk of being struck in that eye was higher than for other employees. S was held liable.
Public Good:
There may be policy considerations as to whether to impose liability.
In Watt v Hertfordshire CC, a fireman (W) was injured when a specialist jack moved during transit. The vehicle use was not the one usually used, but the proper one was unavailable and there was an emergency. Denning LJ states that a public service working an emergency has to take more risk by nature of its work, so should not be liable.
The current approach is perhaps unfair to the claimant as their right to get compensated for being injured is undermined by the idea of public good.
In Tomlinson v Congleton BC, C had placed signs preventing swimming in a lake, but locals ignored these. C removed the beaches to discourage the swimming. Before this was implemented, T severely injured himself when he voluntarily entered the water and hit himself on the bottom of the lake while diving in. T argued that C was negligent as they had not yet removed the beaches. The HL rejects argument as the danger was so obvious and the loss of such a public amenity would outweigh C’s liability.
Custom and Practice:
Existing customs and practices can affect the standard of care.
Where D has some special skill, the court will apply the standard of an ordinary person with that skill. [6]
EG: a doctor will be judged against an ordinary doctor.
D is not negligent if they act in accordance with a body of opinion accepted by responsible professionals, even if there is conflicting or contrary opinion. [7]
This body of opinion must have a ‘logical basis’, [8] and cannot be used to escape liability for a failure to warn or inform a patient of a material risk. [9] Patient should be able to make an autonomous, informed decision.
Regulation:
Certain regulations will be relevant in determining whether a duty of care exists and/or has been breached.
In Baker v Quantum Clothing, B had worked in a factory (QC) for many years. The Department of Employment had published guidance on the maximum recommended noise levels, which was then lowered by an EU directive.
Res Ipsa Loquitur:
meaning ‘the thing speaks for itself’ - common sense.
In Byrne v Boadle, C was hit by a falling barrel from D’s flour stall. Usually C would have to prove that D was negligent, but C did not know why they were injured. In these cases, where C can prove that they were injured and that D run the business, it is up to D to rebut the presumption that they were negligent.
This reverses the burden of proof for policy reasons.
Resources:
References:
[1] See Vaughan v Menlove (1837) 132 ER 490 (CP); Nettleship v Weston [1971] 2 QB 691 [2] Oliver Wendell Holmes [3] Ernest Weinrib [4] Mayo Moran [5] Compensation Act 2006 s1 [6] Bolam v Friern Hospital Management Committee [1957] 1 WLR 5835 [7] Bolam v Friern Hospital Management Committee [1957] 1 WLR 5835 [8] Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 [9] Montgomery v Lanarkshire Health Board [2015] UKSC 11
Cases Mentioned:
Vaughan v Menlove (1837) 132 ER 490 (CP)
Nettleship v Weston [1971] 2 QB 691
Mansfield v Weetabix [1997] EWCA Civ 1352
Dunnage v Randall [2016] QB 639
McHale v Watson (1966) 115 CLR 199
Mullin v Richards [1998] 1 WLR 1304
US v Carroll Towing (1947) (Learned Hand J)
Bolton v Stone [1951] AC 850
Latimer v AEC Ltd [1953] AC 643
Wagon Mound (No. 2)) Overseas Tankship (UK) Ltd v The Miller Steamship Co [1966] UKPC 10, [1967] AC 617; [1967] 2 All ER 709
Paris v Stepney Borough Council [1951] AC 367
Watt v Hertfordshire County Council [1954] 1 WLR 835
Tomlinson v Congleton Borough Council [2003] 3 WLR 705
Baker v Quantum Clothing Group Ltd [2011] UKSC 17
Byrne v Boadle (2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863)
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