2. Negligence - 'standard of care' - the fault principle

Question 1

**Nettleship v Weston [1971] – PG 114 – 116 Jenny

• Objective
• Standard of care

Answer 1

• Facts:
• A learner driver ‘froze’ at the wheel, mounted the pavement and struck a lamp post causing injury to the instructor.
• Held:
• CA – D’s conduct fell below the required standard of care, which was the same objective standard owed by every driver.
• Salmon LJ – dissented, said there was a reduction of damages on account of the instructor’s own fault in respect of the accident.
• Judgement -
• Lord Denning:
• ‘Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her.’
• ‘The learner driver…must drive in as good a manner as a driver of skill’.
• His reasons for holding the learner driver as an experience driver:
  1. She had already been convicted of driving without due care. The criminal law did not excuse her ‘incompetent best’.
  2. It would be inappropriate, and confusing for the driver of a car to owe different duties to different passengers in the car, and to different individuals outside the are, depending on what they knew or did not know about the driver’s competence.
  3. The fact that she had insurance, meant that the loss caused by D should be transferred to C in some form of compensation.

Question 2

Mansfield v Weetabix

Answer 2

• Facts
• D drove his lorry into a shop owned by C. At the time of the incident D was in a hyperglycaemic state which he was not aware of. On the day of the crash he had also been involved in two minor incidents.
• Held
• D was not in breach of duty
• Leggatt LJ said -
• D was unaware that he was suffering from that condition impairing his ability to drive. Thus, applying the objective standard would impose strict liability without taking into account his condition. That is not what the law says. Hence, he was not in breach of duty.

Question 3

Mullin v Richards

• Children
• Standard of care

Answer 3

• Facts:
• C suffered an injury to her eye when a plastic ruler broke whilst playing.
• C claimed against the school on a lack of supervision.
• CA reversed the decision to award damages. It decided that the girl was only expected to meet the standard of a reasonable 15-year-old girl and not of a reasonable man. She was found not to be in breach of duty.

Question 4

Wilsher v Essex AHA

Answer 4

Facts
A premature baby was given too much oxygen by a junior doctor. The baby suffered from a condition which left him totally blind in one eye and partially sighted in the other. Although the baby’s condition could have been caused by other factors unrelated to the oxygen.
Held
The Health Authority’s appeal was allowed on the grounds that D was in breach of duty.
A junior doctor owes the same standard of care as a junior doctor.

Question 5

Wells v Cooper

Answer 5

• The question in the case was what standard of care could be expected of a person who carries out repairs in his own house negligently, so that visitors get injured as a result.

• Facts
• D Mr Cooper fixed a new handle to his back door. Wells, the plaintiff, visiting his house pulled the door strongly in order to shut it. The handle came off and Wells fell injuring himself. Evidence was given that Cooper should have used longer screws when attaching the handle.
• Held
• CA held that the degree of care and skill required by D was measured by reference to the degree of care and skill, which a reasonable amateur carpenter might be expected to apply to the work. The standard of his work was not to be judged against that of a professional, as that is too high. Therefore D satisfied the standard of a reasonably skilled amateur carpenter.
• My comment – this case could contradict the standard test that someone claiming to be a professional should deliver such high quality work.

Question 6

Condon v Basi

Answer 6

• C suffered a broken leg during a tackle from D during a football match. C and D were playing for clubs in a local league. The question for the court was the standard of care expected of a football player.

• Held
• The standard of care varies according to the level of expertise the player has. D was in breach of duty as the tackle was reckless with regard to the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury, which occurs outside the rules of the game.
• The degree of care required will be higher if the football player is in leading league and so on.

Question 7

Shakoor v Situ [2000]

Answer 7

• A case that elaborates on the controversial ruling in Bolam about the ‘responsible body of medical men’ test.

• Facts
• Mr Shakoor suffered a skin condition. He went to see a herbalist Mr Situ who prescribed various herbs to treat his condition.
• After taking the dose Mr Shakoor became very ill. He went to the hospital and was diagnosed as ‘probably having hepatitis A’. His liver failed, had an operation and died. His liver was found to have Bia Xian Pi fatal and the cause of death.
• Judgment
• There was no way to establish that the herbs contained toxic substances
• The standard of care was appropriate to what another herbalist would do. Hence he was found not liable for Mr Shakoor’s death.

Question 8

Blake v Galloway

Answer 8

C, a 15 year old boy, D and other boys were throwing pieces of bark chippings at each other. D threw a piece of bark at C striking his eye and causing serious injury. C brought an action contending a battery and/ or negligence from D. C was awarded damages.
However, at appeal, CA held that in the context of horseplay there is a breach of duty of care only where D’s conduct amounts to recklessness or a very high degree of carelessness.
In the present case C had consented to the risk of injury occurring within the scope of the game.

Question 9

Orchard v Lee

Answer 9

• Facts
• Two 13 and a half year old boys were playing tag.
• The respondent run into the appellant who was working as a lunchtime assistant supervisor at the school. The back of his head came into contact with the appellant’s cheek. The injuries developed and became quite serious.
• Legal proceedings were brought against the boys and the school as defendants.
• Held
• Appeal dismissed on the grounds that a reasonable 13 year old boy in that position would not have regarded such injury as being sufficiently probable to lead him to anticipate it. Therefore the boy did not fall below the standard of care required by him.
• There must be remoteness + sufficient probability = Bolton v Stone

Question 10

Scout Association v Barnes

Answer 10

• Facts
• A13 year old boy was injured whilst playing a scout game; the game had been modified to be played in the dark.
• Held
• Playing the game was not negligent
• Jackson LJ said
• ‘It is the function of the law of tort to deter negligent conduct and to compensate those who are victims of such conduct. It is not the function of the law to eliminate every iota of risk or stamp out socially desirable activities’.

Question 11

Perry v Harris

• Domestic matters: reasonable parents?

Answer 11

• D hired a bouncy castle
• C was permitted to play in the bouncy castle
• The difficulty arose in deciding what precautions D should reasonably have taken to protect against risks, which she knew, or ought to have known children playing on a bouncy castle would be exposed to.
• Held –
• A ‘reasonable parent’ would not necessarily have kept the children under constant supervision.

Question 12

Williams v Williams

• Domestic matters: reasonable parents?

Answer 12

• Mother was accused of being negligent after a car accident left her child badly injured partly due to her lack of compliance with the manufacturer’s instruction of the child’s car chair.
• She had to contribute to 25% of the damages and the person who crushed her had to contribute the rest.
• Held
• The mother was negligent for failing to observe the warnings on the booster seat.

Question 13

***Bolam v Friern Hospital [1957]

• Skilled persons

Answer 13

• So far, remember that the standard of care is lowered in the case of children, and adjusted for actions taken ‘in the heat of the moment’. So it will also be higher if the defendant is performing actions, which require special skills.
• Facts –
• Mr Bolam, a volunteer at the Firern Hospital underwent electro-convulsive therapy. He suffered some serious injuries.
• He sued the committee for compensation and argued they were negligent for: (1) not issuing relaxants, (2) not restraining him (3) not warning him about the risks involved.
• Judgment –
• McNair J – he set out the words that became the Bolam test
• ‘…he 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…a man, is not guilty, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.’
• Criticism to Bolam –
• Montrose, ‘Is Negligence an Ethical or a Sociological Concept?’
• ‘Experts may blind themselves by expertise. The courts should guard the citizen against risks, which professional men and others may ignore.
• More criticism to Bolam –
• The Bolam test has been accused of providing protection toward doctors. This is because often, the court’s judgment is replaced with the judgment of the defendant’s medical expert; as long as he is found to be honest and respectable.
• Hence when difficult issues arise, the traditional approach the courts would take was to reach for the Bolam test, and resist making their own judgment.

Question 14

• Bolitho v City & Hackney HA [1998]

- Skilled persons

Answer 14

• Case clarifies that the final judgment on breach of duty lies with the court, not with medical practitioners.
• The case follows the Bolam test for professional negligence, and addresses the interaction for the concept causation.
• Facts
• 2 year old boy suffered brain damage and later died as a result of cardiac arrest following respiratory failure
• The child had two respiratory difficulties before the final attack. On both occasions a doctors was called to attend but neither doctor attended.
• C claimed the doctor should have attended the child and if the boy had been intubated he would not have suffered a cardiac episode.
• Doctor claimed that even if she had attended she would not have intubated the child. Hence, her failure to attend did not cause the injury.
• Held
• Appeal dismissed – followed Bolam
• HL found there would be a logical reason for the opinion not to intubate.
• The court can choose between two bodies of experts and reject that opinion which is ‘logically indefensible’
• The case departed from the Bolam test, where a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion.
• However, Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care following a practice supported by a body of professional opinion, other than stating that such case will be ‘rare’.

Question 15

Conway v Cardiff and Vale NHS

Answer 15

• Facts
• The health authority was negligent when it breached its duty of care by failing to diagnose congenital disorder in the unborn child
• The case
• In all the circumstances, D, the health authority was liable for the failure to detect C’s disorder.

Question 16

Ecclestone v Medway NHS Foundation Trust

Answer 16

• The case – negligence = professional person
• Facts
• C sued against the NHS Foundation Trust on the ground that, following a knee operation, the aftermath led to serious disability.
• He contended that the surgeon was negligent in the technique he had used and D was negligent in its post-operative care.
• Held
• The use of the technique was reasonable and C’s operation had not fallen outside the NHS’s standard follow-up arrangements.

Question 17

*** Montgomery v Lanarkshire HB [2015] UKSC 11

• Skilled persons

Answer 17

• Facts
• Montgomery the appellant gave birth to her son with cerebral palsy. This was the result of complications during delivery.
• Issues
• Whether the doctor who treated the appellant’s pregnancy and labour was negligent, and whether this was causative of the child’s brain injury.
• The appeal focused on the doctor’s failure to disclose the birth risks related to her insulin dependent diabetes and obtain an informed consent from Montgomery.
• Held
• Appeal allowed on the grounds that it would be a mistake to view patients as uninformed, incapable of understanding matters.
• In this case the court found the majority in Sidaway unsatisfactory and preferred the dissent from Lord Scarman saying that doctors had a duty to disclose potential risks and complication to a treatment.
• Lords Kerr and Reed reasoned that an adult of sound mind was entitled to decide which treatment to undergo, and her consent must be obtained before treatment is carried out.

Question 18

Adams v Rhymney Valley DC [2000] Lloyd’s Rep PN 777

Answer 18

• Facts
• The claimants lived together in a terrace with their three children. One night there was a fire at the house. Mr Adams escaped, Mrs Adams could not open any upstairs windows because they were locked – she smashed a bedroom window and jumped and suffered injuries. The three children died.
• The claimants contended D was negligent and in breach of statutory duty because the types of windows chosen did not ensure their safety. Hence his care was not reasonable in those circumstances.
• Held
• Held D was not negligent because a competent designer could have decided to provide a window lock with a removable key like D.
• In the CA appeal dismissed
• Dissent
• Sedley LJ held ‘…the Bolam test was to enable the court to determine whether a person professing and purporting to exercise a particular skill had exercised it with reasonable competence’ so D should have considered and reflected upon the consequence of choosing the type of window.

Question 19

Bolton v Stone

• Has the required standard been breached?
• Four factors must be balanced:

a. magnitude of likely harm
b. probability of it occurring
c. the cost of the precautions necessary to avert the harm
d. the social utility of the defendant’s conduct

Answer 19

• Facts
• Mrs Stone was injured when a cricket ball struck her outside her home. She brought an action against the cricket club in nuisance and negligence.
• Held in the HL
• No breach of duty. The likelihood of harm was low. The defendant had taken all practical precautions in the circumstances. The cricket ground had been there for many years without injury and provided a useful service for the community.
• The case establishes that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence.
• The risk was considered to remote for the reasonable person.
• The risk must be balanced against the defendant’s purpose in carrying on its activities and the practicability and cost of taking precautions.
• US law would agree. In Renaldo v McGovern, stated that a player would only be liable for miss-hitting the ball if the player aimed inaccurately so as to increase the risk of harm unreasonably.

Question 20

Paris v Stepney

• Has the required standard been breached?
• Four factors must be balanced:

a. magnitude of likely harm
b. probability of it occurring
c. the cost of the precautions necessary to avert the harm
d. the social utility of the defendant’s conduct

Answer 20

• Facts
• The claimant only had sight in one eye.
• During the course of his employment, a splinter of metal went into his sighted eye causing him to become completely blind.
• The employer did not provide safety goggles to workers engaged in the type of work that the claimant was undertaking.
• The defendant argued that there was no breach of duty as they did not provide goggles to workers with vision in both eyes and had no obligation to provide them to C.
• Held
• There was a breach of duty
• The employer should have provided goggles to the claimant because the seriousness of harm to him would have been greater than that experienced by worker with vision in both eyes.

Question 21

Latimer v AEC

• Has the required standard been breached?
• Four factors must be balanced:

a. magnitude of likely harm
b. probability of it occurring
c. the cost of the precautions necessary to avert the harm
d. the social utility of the defendant’s conduct

Answer 21

• Facts
• C worked in the defendant’s factory and slipped on the factory floor. The factory had become flooded due to adverse weather conditions. The defendant had put a warning sign to make it as safe as possible.
• Held
• There was no breach of duty. There was no duty to close in the factory contrary to what the trial judge had said.
• There was no duty to close the factory.
• So… A defendant does not have to totally eliminate the risk but must do as much as the reasonable person would do in the circumstances.

Question 22

**Wagon Mound No.2

• Has the required standard been breached?
• Four factors must be balanced:

a. magnitude of likely harm
b. probability of it occurring
c. the cost of the precautions necessary to avert the harm
d. the social utility of the defendant’s conduct

Answer 22

• Facts:
• D’s vessel, the Wagon Mound, leaked furnace oil at a wharf due to the failure to close the valve. Some cotton debris became embroiled in the oil and sparks ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.
• Held:
• The defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it. The ignition if oil was unlikely bur foreseeable.
• Lord Reid
• If it is clear that the reasonable man would have realised or foresee and prevented the risk then it must follow that the appellants are liable in damages’ – he further said that the vigilant ship’s engineer would have noticed the discharge at an earlier stage.
• The fact that the risk is small, does not justify us in ignoring it. There must be a valid reason for neglecting it.
• Jenny’s comment in Lord Reid judgment P 135
• Jenny says that ‘weighting the risk against the difficulty of avoiding it supports the view that English negligence law adopts something’ like the ‘Learned Hand test’. A test derived from the American test US v Carroll Towing Co.

Question 23

Tomlinson v Congleton BC

Answer 23

• Case about the tort of negligence and the occupiers’ liability – the latter regarding the Occupiers’ Liability Act 1984.
• Facts
• C visited a lake part of the country park. He decided to dive in; he hit his head on the sandy bottom leaving him tetraplegic as a result of a break to the fifth vertebra of his neck.
• He brought proceedings against the council under the Occupiers’ Liability Act 1984 (as a trespasser).
• Held
• The council did not owe a duty of care to him. This is because he entered a lake that was out of bounds to him. The council contended that they had taken measures to prevent people from swimming in the lake including warning signs and park ranger patrols.
• Lord Nicholls and Lord Hoffmann stated:
- That Mr Tomlinson suffered his injury because he chose to ‘indulge in an activity which had inherent dangers, not because the premises were in a dangerous state.’

Question 24

Compensation Act 2006 s 1 + It’s latest development:

Social Action, Responsibility and Heroism Act 2015 (SARAH)

Answer 24

• Has the required standard been breached?
• Four factors must be balanced:

a. magnitude of likely harm
b. probability of it occurring
c. the cost of the precautions necessary to avert the harm
d. the social utility of the defendant’s conduct

• Link these two provisions with the relevant cases.

Question 25

Ward v Tesco Stores

Answer 25

C may be helped in the doctrine of negligence using the evidential doctrine known as ‘res…’ the doctrine was derived from:
Katherine Docks - the doctrine was applied in this case.

• Concerns the doctrine of ‘res ipsa loquitur’ (the thing speaks for itself).
• The case sets an important precedent in the ‘trip and slip’ cases.
• Facts
• The plaintiff slipped on some yogurt in Tesco store
• The plaintiff was treated kindly and in a considerable way. About three weeks later she was shopping in the same store and noticed orange squash had been spilt on the floor. She kept an eye on the spillage and no one came to clean it.
• Held
• Lawton LJ and Megaw LJ Judge found in favour of the plaintiff because the yogurt being spilt on the floor spoke for itself as to who was to blame
• Dissent
• Omrod LJ argued that the accident ‘could clearly have happened no matter what degree of care these defendants had taken.’