aim of this essay is to question how far do the courts maintain an objective
standard in order to determine whether a particular defendant is in breach of
duty of care in negligence. To discuss that, relevant cases will be used to illustrate
key points in this essay.
to Winfield, “Negligence as a tort is a breach of a legal
duty to take care which results in damage to the claimant”. In
other words, the duty of care is a legal duty owed by the defendant to the
claimant to take care. If there is damage to the claimant caused by the breach of
that duty, then it is said that there is a breach of duty of care in negligence.
first to decide the duty of care principle was Lord Atkin with his neighbour test:
rule that you are to love your neighbour becomes in law you must not injure
your neighbour; and the lawyer’s question ‘Who is my
neighbour?’ receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely 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
arose from the case of Donoghue v Stevenson1:
Donoghue went to a cafe with a friend who brought her a bottle of ginger beer
and an ice cream. The ginger beer came in an opaque bottle so that the contents
could not be seen. Mrs Donoghue poured half the contents of the bottle over her
ice cream and also drank some from the bottle. Then she poured the remaining
contents of the bottle over the ice cream and a decomposed snail emerged from
the bottle. As a result, Mrs Donoghue suffered personal injury. She claimed
against the manufacturer of the ginger beer. It was held that her claim was successful.
important steps were taken in the case Donoghue
v Stevenson. For the first time tort law was independent from contract law
and a general tort of negligence was recognised. This case established the
modern law of negligence and established the neighbour test.
Macmillan then observed that ‘the categories of negligence are never too
close’ and other duty situations came up. There
was a period of general expansion of the reach of negligence during the 1960s
and early 1970s.
the case of Home Office v Dorset Yacht Co Ltd2:
Some young offenders were doing supervised
work on Brown Sea Island under the Borstal regime. One night the Borstal
officers retired for the evening leaving the boys unsupervised. Seven of them
escaped and stole a boat which collided with a Yacht owned by the
claimant. It was held that the Home Office owed a duty of care for their
omission as they were in a position of control over the 3rd party who caused
the damage and it was foreseeable that harm would result from their inaction.
Then was when Lord Diplock talked about foreseeability of harm and proximity of those in the yacht club who
were more at risk than the general public.
expand this, another case came up, Anns v London Borough of Merton3:
claimants were tenants in a block of flats. The flats suffered from structural
defects due to inadequate foundations. The Council was responsible for
inspecting the foundations during the construction of the flats. The House of
Lords held that the defendant did owe a duty of care to ensure the foundations
were of the correct depth. This case was described as “the
heroic age of the law of negligence”.
Wilberforce then introduced a two-stage test, known as ‘Anns test’, for
imposing a duty of care. Anns test requires first a ‘sufficient
relationship of proximity based upon foreseeability’; and
secondly considerations of reasons why there should not be a
duty of care.
test has since been overruled by the Caparo test. In the case of Caparo
Industries pIc v Dickman4:
Industries purchased shares in Fidelity Plc in reliance of the accounts which
stated that the company had made a pre-tax profit of £1.3M. In fact, Fidelity
had made a loss of over £400,000. Caparo brought an action against the auditors
claiming they were negligent in certifying the accounts. It was held that no
duty of care was owed. There was not sufficient proximity between Caparo and
the auditors since the auditors were not aware of the existence of Caparo nor
the purpose for which the accounts were being used by them.
According to Lord Bridge:
“What emerges is that, 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 the situation should be one in which the
court considers it fair, just and
reasonable that the law should impose a duty of a given scope upon the one
party for the benefit of the other.”
tests led to the development of an objective standard, the standard of the
reasonable man, which is what courts use to determine whether there is a breach
of duty of care in negligence or not.
reasonable man in negligence is a creation of legal fiction. This “man” is
really an ideal, focusing on how an ordinary person, with ordinary prudence,
would react in certain circumstances. As the test of the reasonable man is an
objective one, it does not take into account the specific abilities that the
defendant might have. Hence, even a learner driver is held to the same standard
as an experienced driver.
example, in Nettleship v Weston5:
The defendant was a learner driver, taking lessons from a friend. The friend
checked that the defendant’s insurance covered her for passengers before
agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr
Nettleship told her to straighten the wheel but Mrs Weston panicked and failed
to do so. She approached the pavement and Mr Nettleship grabbed the handbrake
and tried to straighten the wheel but it was too late. She mounted the pavement
and hit a lamp post. Mr Nettleship fractured his knee. The defendant argued
that the standard of care should be lowered for learner drivers and she also
raised the defence of volenti non
fit injuria in that in agreeing to get in the car knowing she was a
learner, he had voluntarily accepted the risk. It was held that since Mr
Nettleship had checked on the insurance position, he had expressly not
consented to run the risk and there was no question of volenti non fit injuria;
the duty of care owed by a learner driver was the same as that owed by every
driver, and Mrs Weston was liable in damages.
Lord Denning stated, “A learner driver may be doing his best, but
his incompetent best is not enough”.
rule, however, has exceptions and so does the standard of the reasonable man.
Although that standard is proven to be mainly objective, it may vary with
people, circumstances, skills or profession.
are situations that judges cannot decide for a case accordingly to the standard
of reasonable man. For instance, people of younger age might be treated
differently than people of older age. Such an example is the case Mullin
15-year-old school girls were fighting with plastic rulers. A ruler snapped and
a splinter went into one of the girl’s eyes causing blindness. The girl brought
an action against the other girl for her negligent action. It was held
that the girl was only expected to meet the standard of a reasonable 15-year-old
school girl not that of a reasonable man. There was no breach of duty due to
the fact that the girls would not have foreseen any real likelihood of injury.
is another determining factor for judges. For example, an incident involves
athletes during a performance or a competition is not going to be decided the
same way as if they were non-athletes. In the case Condon v Basi7:
The Claimant suffered a broken leg during a tackle from the Defendant during a
football match. The Claimant was playing for Whittle Wanderers and the
Defendant for the Khalso Football Club. Both clubs were in the Leamington local
league. The question for the court was the standard of care expected of a
football player. It was held that the standard of care varies according to
the level of expertise the player has. The defendant was in breach of duty as
the tackle was reckless even with regards the standard expected of a local
league player. Whilst a participant can be taken to accept the risks of injury
inherent in such sporting activities they do not accept the risk of injury
which occurs outside the rules of the game.
Sir John Donaldson MR stated that:
“The standard is objective, but objective in a different set of circumstances.
Thus, 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
person might have a skill, but that does not mean that they are an expert. In
the case Phillips v William Whiteley Ltd8:
The defendant employed a man to
pierce claimant’s ears, two weeks later she developed an infection that caused
an abscess on her neck that required surgical draining. It was held that ‘if a
person wants to ensure that the operation of piercing her ears is going to be
carried out with that proportion of skill that the fellow of the Royal College
of Surgeons would use, she must go to a surgeon’10, judge Lowell Goddard. The claimant was
unable to prove that the operation was negligently performed, and that the
abscess which formed in her neck was due to the negligence.
profession can be a challenging factor in a decision. Professionals are
expected to know better and so it can be said that the standard is higher for them, but what if
they act under the instructions of a responsible body and there is an injury?
In the case Bolam v Friern
Hospital Management Committee9:
The claimant was
undergoing electro convulsive therapy as treatment for his mental illness. The
doctor did not give any relaxant drugs and the claimant suffered a serious
fracture. There was divided opinion amongst professionals as to whether
relaxant drugs should be given. If they are given there is a very small risk of
death, if they are not given there is a small risk of fractures. The claimant
argued that the doctor was in breach of duty by not using the relaxant drug. It
was held that the doctor was not in breach of duty. The House of Lords then formulated
the Bolam test: “a medical professional 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. 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 who would take a contrary view”.
It is easy to say
that courts generally maintain an objective standard when it comes to the duty
of care. But, as described above, there are cases that will be treated
differently owing to the fact that there are parameters that have to be taken into
consideration when deciding a case. What the courts are trying to do is to keep
a balance, so as not to discriminate against any case, and be fair to all
V. and Brennan C., Tort Law Directions (4th
edn, OUP 2014)
G., Sourcebooks on Torts (2nd
edn, Cavendish Publishing 2000)
F., Blackstone’s Statutes on Contract,
Tort & Restitution 2017-2018 (28th edn, OUP 2017)
K.N., “The Reasonable Person” Tort Law: A Modern Perspective (Cambridge
University Press 2016)
v Stevenson 1932 AC 562
Office v Dorset Yacht Co Ltd 1970
London Borough of Merton 1978 AC 728
pIc v Dickman 1990 2 AC 605
v Weston 1971 2 QB 691
Richards 1998 1 WLR
Condon v Basi 1985 1 WLR 866
Phillips v William Whiteley Ltd 1938 KBD
Bolam v Friern Hospital Management Committee 1957 1 WLR 583