Negligence is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others . One of the main ways in which access to compensation is restricted is through the doctrine of the duty of care. Essentially,this is a legal concept which dictates the circumstances in which one party will be liable to another in negligence.
Breach of a duty of care essentially means that the defendant has fallen below the standard of behavior expected in someone undertaking the activity concerned ,so for example, driving carelessly is a breach of the duty owed to the road users,while bad medical treatment may be breach of the duty owed by doctors to patients. In each case,the standard of care which could be expected from a reasonable person. This means that it is irrelevant that the defendant’s conduct seemed to be fine to them; it must meet a general standard of reasonableness.
Not all careless conduct which causes damage will give rise to an action because to be liable in negligence,there must be a duty to take care and breach of that duty by the defendant causing damage to the claimant as illustrated in Lochgelly Iron Co. v McMullan. The elements of negligence are duty of care,breach of care,causation and that the damage is not too remote. There have been developments to the standard of care in the tort of negligence in recent years to encourage people to take care and discourage actions likely to endanger others.
As the test is objective,the particular defendant’s own characteristics are usually ignored. A striking example of this is that the standard of care required of a driver is that of a reasonable driver,with no account taken of whether the driver has been driving for 20 years or 20 minutes,or even is a learner driver. In Nettleship v Weston(1971)the claimant was a driving instructor,and the defendant his pupil. On her third lesson,she drove into a lamp post and the claimant was injured.
The court held that she was required to come up to the standard of the average competent driver,and anything less amounted to negligence. ‘The learner driver may be doing his best,but his incompetent best is not good enough. He must drive in as good manner as a driver of skill,experience and care”. The standard of care applicable in ordinary cases,where the defendant is an ordinary person,carrying out a regular and ordinary act,is the standard of care of the ‘reasonable man’ which can be seen in number of cases such as Hall v Brooklands where a reasonable man is an ordinary man,an average man,the man on the Clapham
Omnibus. In Glasgow Corporation v Muir(1943)MacMillan LJ concluded that the reasonable man is ‘presumed to be free from both over-apprehension and from over-confidence’. If we analyse this critically,in Roberts v Ramsbottom(1980)the defendant had suffered a stroke while driving and,as a result,lost control of the car and hit the claimant. The court held that he should nevertheless be judged according to the standards of reasonably competent driver.
This may seem extremely unjust,but remember that motorists are required by law to be covered by insurance,the question in the case was not whether the driver himself would have to compensate the claimant,but whether his insurance company could avoid doing so by establishing that he had not been negligent. This is also one explaination for the apparently impossible standard imposed in Nettleship. Even so,in a more recent case,Mansfield v Weetabix Ltd(1997),the Court of Appeal took a different approach.
Here the driver of a lorry was suffering from a disease which on the day in question caused a hypoglycaemic state(a condition in which the blood sugar falls so low that the brain’s efficiency becomes temporarily impaired). This affected his driving,with the result that he crashed into the defendant’s shop. The driver did not know that his ability to drive is impaired,and there was evidence that he would not have continued to drive if he had known.
The Court of Appeal said that the standard by which he should be measured was that of a reasonably competent driver who was unaware that he suffered from a condition which impaired his ability to drive;on this basis he was found not to be negligent. Among the factors that affects the breach are magnitude of risk which includes both the chances of damage occurring,and the potential seriousness of that damage. In Bolton v Stone(1951),the claimant was standing outside her house in a quiet street when she was hit by a cricket ball from a nearby ground.
It was clear that the cricketers could have foreseen that a ball would be hit out of the ground,and this had happened before,but only six times in the previous 30 years. Taking into consideration the presence of a 17-foot fence,the distance from the pitch to the edge of the ground,and the fact that the ground sloped upwards in the direction in which the ball was stuck,the House of Lords considered that the chances of injury to someone standing where the claimant was were so slight that the cricket club was not negligent in allowing cricket to be played without having taken any other precautions against such n event. The only way to ensure that such an injury could not occur would be to erect an extremely high fence,or possibly even a dome over the whole ground,and the trouble and expense of such precautions were completely out of proportion to the degree of risk. It was also applicable in Miller v Jackson where the cricket balls were hit out of the defendant’s ground 8 or 9 times a season. The likelihood of harm was great,creating a high risk of injury to the claimant. The defendant had failed to meet the standard of care.
A case in which the potential seriousness of an injury was decisive is Paris v Stepney Borough Council. The following factor is practicality of precautions where the magnitude of the risk must be balanced against the cost and trouble to the defendant of taking the measures necessary to eliminate it. The more serious the risk(in terms of both the chances of it happening and the degree of potential harm),the more the defendant is expected to do to protect aginst it. Conversely,as Bolton v Stone shows,defendants are not expected to take extreme precautions aginst very slight risks.
This was also the case in Latimer v AEC Ltd(1952). Flooding had ocured in a factory owned by the defendants following an unusually heavy spell of rain. This had left patches of the floor very slippery. The defendants had covered some of the wet areas with sawdust,but had not had enough to cover all of them. The claimant,a factory employee,was injured after slipping on an uncovered area,and sued,alleging that the defendants had not taken sufficient precautions;in view of the danger,they should have closed the factory.
The House of Lords agreed that the only way to eradicate the danger was to close the factory,but held that given the level of risk,particularly bearing in mind that the slippery patches were clearly visible,such an onerous precaution would be out of proportion. The defendants were held not liable. Where the defendant is reacting to an emergency,they are then judged according to what a reasonable person could be expected to do in such a position and with the time available to decide on action,and this will clearly allow for a lesser standard of conduct than that expected where the situation allows time for careful thought.
It was also applicable in Wilson v Governors of Sacred Heart Roman Catholic Primary School where the court held that it is not necessary for a primary school to employ a supervisor at the end of the school day to ensure pupils safety in the school yard on their way out of school. Next,is the utility of conduct where some risks have potential benefits for society,and it has long been the practice of the courts to weigh such benefits against the possible damage if the risk is taken. This principle was applied in Watt v Hertfordshire County Council(1954). The claimant was a firefighter.
He was among others called to the scene of an accident where a woman was trapped under a car;a heavy jack was neede to rescue her. The vehicle in which the fireofficers travelled to the scene was not designed to carry the jack,and the claimant was injured when it slipped. He sued his employers,but the court held that the risk taken in transporting the jack was outweighed by the need to get there quickly in order to save the woman’s life. However, the court stated that if the same accident had occurred in a commercial situation,where the risk was taken in order to get a job done for profit,the claimant would have been able to recover.
The state of knowledge do affect the breach as well , in Roe v Minister of Health where the court held that one cannot use hindsight to determine breach . The defendant is entitled to be judged according to the standards that were accepted at the time when the defendant acted. At that time,it was the practice to store the anaesthetic in an ampoule surrounded by phenol and the possibility of an invisible crack contaminating it was not known. Account will also be taken of the fact that a particular defendant has a professional skill,where the case involves the exercise of that skill.
In such a case,the law will expect the defendant to show the degree of competence usually to be expected of an ordinary skilled member of that profession,when doing their duties properly. A defendant who falls short of that level of competence,with the result that damage is done,is likely to be held negligent. It would be ridiculous to demand of a surgeon,for example,no more than the skill of the untrained person in the street when carrying out an operation. In Vowles v Evans(2003),a rugby player was injured as a result of a decision made by the referee.
The Court of Appeal held that the degree of care a referee was legally expected to exercise would depend on his grade,and that of the match he was refeering;less skill would be expected of an amateur stepping in to help out,than of a professional referee. This means that the same accident might amount to a breach of duty if the referee was a trained professional, but not if he was an amateur. The referee in the case was a professional and was found liable. Similarly,in Gates v McKenna(1998),a stage hypnotist was xpected to take the precautions that a ‘reasonably careful exponent of stage hypnotism’would take to prevent psychiatric injury to members of his audience,while in Horton v Evans(2006),a pharmacist was held liable for the side-effects suffered by a customer whose GP had mistakenly prescribed drugs eight times stronger than her usual dose,on the grounds that a reasonably careful and competent pharmacist would have noticed the increased dosage and queried it with the claimant or the GP(the GP was also sued and settled out of court).
In assessing the standard of care to be expected in areas where the defendant is exercising special skill or knowledge,the courts have accepted that within a profession or trade there may be differences of opinion as to the best techniques and procedures in any situation. This issue was addressed in Bolam v Friern Barnet Hospital(1957),a case brought by a patient who had electric shock treatment for psychiatric problems and had suffered broken bones as a result of the relaxant drugs given before the treatment.
These drugs were not always given to patients undergoing electric shock treatment;some doctors felt they should not be given because of the risk of fractures;others, including the defendant,believed their use was desirable. How was the court then to decide whether,in using them,the defendant had fallen below the standard of a reasonable doctor?
Their answer was a formula which has been taken as allowing the medical profession (and to certain extent other professions,as the test has been adopted in other types of case too)to fix their own standards. According to McNair: A doctor 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 that particular art. Providing this was the case,the fact that other doctors might disagree could not make the conduct negligent.
The practical effect of this decision (which was only given in a High Court case,but was adopted in several later House of Lords cases)was that so long as a doctor could find a medical expert prepared to state that the actions complained of were in keeping with a responsibly body of medical opinion,it would be impossible to find him or her negligent. The House of Lords has,however,now modified this much-criticised decision in Bolitho v City & Hackney Health Authority(1997). This case involved a two-year-old boy. ho was admitted to hospital suffering breathing difficulties. He was not seen by a doctor. Shortly after his second attack of breathing problems,his breathing failed completely,he suffered a heart attack and died. His mother sued the health authority on his behalf,arguing that he should have been seen by a doctor,who should have intubated him(inserted a tube into his throat to help him breathe)and that it was the failure to do this which caused his death. The doctor maintained that even if she had seen the boy. he would not have intubated him,which meant that the court had to decide whether she would have been negligent in not doing so. The doctor was able to produce an expert witness to say that intubation would not have been the correct treatment,and the claimant was able to produce one who said it would. In this situation,the Bolam principle had always been taken as suggesting that the doctor was therefore not negligent-other medical opinion might disagree with what she did,but she could produce evidence that it was a practice accepted by a responsible body of medical opinion.
Lord Browne-Wilkinson,delivering the leading judgement with which the others agreed,thought differently. While agreeing that the Bolam test was still the correct one to apply,he said that the court was not obliged to hold that a doctor was not liable for negligence simply because some medical experts had testified that the doctor’s actions were in line with accepted practice. The court had to satisfy itself that the medical experts’ opinion was reasonable,in that they had weighed up the risks and benefits,and had a logical basis for their conclusion.
He then went on,however,to water down this statement by suggesting that in most cases the fact that medical experts held a particular view would in itself demonstrate its reasonableness,and that it would only be in very rare cases that a court would reject such a view as unreasonable. The case before the House of Lords,he concluded,was not one of those rare situations,and so the claimant’s claim was rejected. However,there are some signs that Bolitho is being used more forcefully,to hold medical opinion to a proper standard of reasonableness.
In Marriot v West Midlands Regional Health Authority(1999),the claimant had suffered a head injury after after a fall at home;he spent the night in hospital but was discharged the next day after tests. After continuing to feel ill for a week,he called his GP,who could find nothing wrong but told Mrs Marriott to call him againif her husband’s condition got any worse. Four days later,Mr Marriott became partially paralysed,and this was later discovered to be result if the orginal injury.
He claimed that the GP had been negligent in not referring him back to the hospital,given that the GP did not have the resources to test for the condition which he was eventually found to have. At trial,Mr Marriott’s expert witness claimed that,given the symptoms Mr Marriott had shown ,the GP should have sent him back to the hospital for more tests;however’the GP brought expert evidence to suggest that,although this would have been a reasonable course of action,keeping a patient at home for review was equally reasonable in the circumstances.
The old Bolam approach would have required the judge to find for the GP,given that he could prove that a reasonable body of medical opinion supported his actions,but following Bolitho,the trial judge looked at the reasonableness of this opinion,given the risk to Mr Marriott,and concluded that,in the circumstances deciding to review his case at home,without asking for further tests,was not a reasonable use of a GP’s discretion. He therefore found the GP negligent.
The Court of Appeal upheld his approach;a trial judge was entitled to carry out his own assessment of the risk in the circumstances,and was not bound to follow the opinion of a body of experts. Based on the principles of law and the decided cases,I believe that the rules used to determine the the standard of care in negligence cases achieved the aim to encourage people to take care and diccourage actions likely to endanger others.
This is because duty of care arises frequently,and that in turn is because of its power to affect the whole shape of negligence. Every time a potential new duty of care is accepted or ruled out,that has implications for the numbers of tort cases being brought in the future,the types of situations it can play a part in,and therefore the role which the tort system plays in society.