31 GENERAL PRINCIPLES
31.1 It is not enough that the defendant owes the claimant a duty of care. He must also have breached it. This means that, on an objective standard, he has not done what a ‘reasonable man’ would have done in the situation.
31.2 It is all a question of risk assessment, and involves considering not only what the defendant should have done, but also what precautions the claimant should reasonably have taken. The defendant is only required to guard against reasonably foreseeable accidents, not fantastic possibilities.
In this he is judged by the objective standards of the ‘reasonable man/woman’ 31.3 Blyth v. Birmingham Waterworks Co. [1856] 11 Ex. 781
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” per Baron Alderson
32 WHO IS THE REASONABLE MAN?
32.1 Hall v. Brooklands Auto Racing Club [1933] 1 KB 205 (CA)
“The person concerned is sometimes described as the ‘man on the street’, or the ‘man on the Clapham Omnibus’, or as I recently read from an American author ‘the man who takes the magazines at home and in the evening pushes the lawnmower in his shirt sleeves.’”
per Greer L.J. at p.224
32.2 Glasgow Corporation v. Muir [1943] AC 448 (CA)
The defendants allowed a church picnic party to use their tea-rooms on a wet day. During the course of the day, a tea-urn, which was being carried through a passage, was dropped and the water scalded some children. It was held that the defendants were not liable, as there was no reason why they would anticipate this event happening as a result of their granting permission for a picnic.
“The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are, by nature, unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation and what accordingly the party sought to be made liable ought to have foreseen. Here there is room for diversity of view, as indeed is well illustrated in the present case. What to one judge may seem far- fetched may seem to another both natural and probable.” per Lord Macmillan at p.457
32.3 Chester v. Afshar [2005] 1 AC 134 (HL)
“On its own, common sense, and without more guidance, is no more reliable as a guide to the right answer in this case than an appeal to the views of the traveller on the London Underground. As I survey my fellow passengers on my twice weekly journeys to and from Heathrow Airport on the Piccadilly Line – such a variety in age, race, nationality and languages – I find it increasingly hard to persuade myself that any one view on anything other than the most basic issues can be said to be typical of all of them.” per Lord Hope at para 83
32.4 Eldredge, Modern Tort.
32.5 C.K. Allen, Law in the Making
“Nobody is deceived by the fiction that the judge is stating not what he himself thinks, but what an average reasonable man might think.”
33
WHAT IS A REASONABLE STANDARD OF CARE?
33.1 The objective standard of what is ‘reasonable’ will vary depending on the circumstances in which the defendant finds himself. Various factors have been considered by the courts in deciding how much care it was reasonable for the defendant to take (or not to take) in the particular circumstances of the cases.
34
THE MAGNITUDE OF THE RISK
34.1 The greater the risk of an act or omission causing an injury, the less reasonable it will be to do it. Conversely, if an activity carries very little risk of causing an injury, it may be reasonable to take the risk of pursuing it, particularly if it has some social value.
34.2 Bolton v. Stone [1951] AC 850 (HL)
The plaintiff was hit by a cricket ball whilst standing on a side-road near to a cricket ground. The ground was enclosed by a seven-foot fence, the top of which was seventeen feet above the level of the pitch. Although balls had been hit over the fence on rare occasions in the past, the hit in question was altogether exceptional. HELD: Although the possibility of the ball being hit onto the highway might reasonably have been foreseen, this was not sufficient to establish negligence, since the risk of injury to anyone in such a place was so remote that a reasonable person would not have anticipated it.
“The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen. Many foreseeable risks are extremely unlikely to happen and cannot be guarded against except by almost complete isolation. The ordinarily prudent owner of a dog does not keep his dog always on a lead on a country highway for fear it may cause injury to a passing motor cyclist, nor does the ordinarily prudent pedestrian avoid the use of the highway for fear of skidding motor cars.” per Lord Oaksey at p.863
34.3 Haley v. London Electricity Board [1965] AC 778 (HL)
The respondent Electricity Board dug a sixty-foot trench lengthwise along Charlton Church Lane in south London. To guard the trench, the workmen had put a punner-hammer across the pavement with its long handle resting on some railings about two feet high. (A punner-hammer is a broomstick with a weight on it, used to beat down the earth.) There was a similar arrangement made up of a pick and a shovel at the other end, and various warning signs.
John Haley, aged 64, was a blind telephonist, who often walked down this lane on his way to the bus-stop. (He had been blinded 25 years earlier by having a hard ball batted into his face.) His white stick missed the punner-handle and his leg caught it about 4.5 inches above his ankle. He was catapulted into the hole and became almost totally deaf. The Electricity Board argued that a blind person who chooses to walk on the highway alone takes upon himself the risk of colliding with any obstruction.
In the Court of Appeal, Lord Denning was curiously unsympathetic towards Mr. Haley.
“In order to fulfil this duty, the defendants must, I think, have regard to all the many sorts and conditions of people who use the pavement. They must realise that it is used by men and women hurrying to work, by boys and girls running to school, and by old people pottering on their morning walk. All these are commonplace users of the way, and proper provision must be had for their safety. But the defendants do not have to cater for the man who walks with his head in the air and does not look where he is going. He is such an exceptional person that they need not provide for him. If he runs into a fence or guard, it cannot be helped. It is not their fault.
“Likewise, I am afraid I must say, the defendants do not have to provide for the blind, at any rate in places where they have no particular reason to expect blind persons to be. It would be too great a tax on the ordinary business of life if special precautions had to be taken to protect the blind.”
per Lord Denning MR at [1964] 2 QB 121, p.128 The House of Lords did not agree with Lord Denning and held that the Electricity Board was liable. Blind people are not so uncommon that it is reasonable to ignore their needs.
“It is their duty to take reasonable care not to act in a way likely to endanger other persons who may reasonably be expected to walk along the pavement. That duty is owed to blind persons if the operators foresee or ought to have foreseen that blind persons may walk along the pavement and is in no way different from the duty owed to persons with sight, though the carrying out of the duty may involve extra precautions in the case of blind pedestrians. I think that everyone living in Greater London must have seen blind persons walking slowly along on the pavement and waving a white stick in front of them, so as to touch any obstruction which may be in their way, and I think that the respondents’ workmen ought to have foreseen that a blind person might well come along the pavement in question.” per Lord Morton at p.794
34.4 Gates v. McKenna [1998] Lloyd’s Rep. Med, 408
Christopher Gates, aged 25, was hypnotised by Paul McKenna during a stage show, and claimed damages when he later became schizophrenic. He lost. Apart from the fact that he had failed to establish any causal link between the hypnosis and the schizophrenia, he had also failed to establish that there was any foreseeable risk that hypnosis of this type could cause any lasting physical effects.
“The defendant provided what was intended to be a form of family entertainment, in which the plaintiff willingly participated. I do not believe that he can be fairly criticised for his conduct of the show, or that anyone could reasonably have been expected to foresee the disastrous consequences which it is alleged to have had for the plaintiff.” per Toulson J.
34.5 Thompson v. Home Office [2001] EWCA Civ 331 (CA)
Delroy Thompson was serving a custodial sentence at Swinfen Hall Young Offender Institution. Another inmate attacked him with a razor blade supplied by the YOI officers. He claimed £15,000 in damages.
He was awarded £7,650 by the trial judge and the defendants appealed on the basis that they had been reasonable in following Home Office guidelines which stated: “Convicted prisoners may be allowed to retain razor blades or disposable razors at the Governor’s discretion. When a Governor has reason to believe that a prisoner may harm himself or others, razor blades or disposable razors should be issued on a daily basis.”
The Court of Appeal held that the defendants were not negligent in adopting these guidelines. There had only been one confirmed razor blade attack at the institution in the 23 months prior to the incident and there was no obvious reason for the Governor not to adopt the basic policy, particularly as trusting the inmates with razor blades contributed to their rehabilitation by giving them a sense of responsibility (and a lethal weapon!)
34.6 Orange v. Chief Constable of West Yorkshire Police [2002] QB 347
Paul Orange, aged 25, was arrested for being drunk and disorderly at 5.40 a.m. as he staggered home with his friend, swearing at a passing police van. He was placed in a police cell and was allowed to keep all of his clothing. He was monitored by visits every 30 minutes and by a closed circuit television. He was observed walking around the cell at 9.30, in no apparent distress. Shortly afterwards, when a police officer went to release him from his cell, he discovered that Orange had hanged himself to death with his belt. His widow sued the police for negligence.
HELD: The police were not liable. Although the police owe a duty of care to people in custody to take reasonable care for their health and safety, where there is no reason to suppose that someone is a suicide risk, they are not obliged to treat them with the same care and attention they would lavish on someone who is.
“There is no doubt that a custodian owes a duty of care to those taken into custody. As we have said, the duty is to take reasonable care for that person’s health and safety. In determining the extent of that duty, it is clearly relevant to take into account the fact that there is an increased risk of suicide amongst such prisoners. But that does not mean that suicide is a foreseeable risk in relation to every prisoner. As Lord Hope said in Reeve’s case [2000], suicide can be both unforeseen and unforeseeable. Nor do we consider that it would be fair, just and reasonable to impose upon either the police or the prison authorities a general obligation to treat every prisoner as if he or she were a suicide risk. The consequence would be an unacceptable level of control and precaution, not only as an obligation placed upon the authorities, but also as an imposition on the individual prisoner.”
per Latham L.J. at para 41 34.7 Charles v. Cardiff CC [2002] EWCA Civ 1735
Yvonne Charles was employed as a residential social worker at Crosslands Residential Unit which provided accommodation for up to six children aged between 10 to 16 who had behavioural problems. The older residents were free to come and go as they pleased and to have visitors with an informal curfew of about 9 pm. One evening at 9.30 pm Miss Charles heard a bang at the door of the home. She opened it to two young males thinking they were residents. They were not residents and were drunk, threatening and aggressive. When Miss Charles refused them entrance, one grabbed her arm and repeatedly banged the door closed on her wrist, causing her injury. She sued the Council for their failure to equip the door with a chain, an elementary precaution which would have prevented this incident. She lost.
The court held that the risk of such an incident occurring was very small, especially as she could have asked for the identity of the callers through the door which had frosted glass panels, or by looking through the clear glass of the lounge window. She had been answering the door for ten years without the use of a chain. Furthermore, the staff had been special training in dealing with aggressive youths and did not need precautions of this sort to keep them at bay.
34.8 R. v. Ministry of Defence [2007] EWCA Civ 1472
R, a serving member of the RAF in Cranwell, was resident in an all-women accommodation block which had an external lock and combination locks for each corridor. R and her women friends went for a drunken night out at Flicks Nightclub, where one of the friends, Fiona Graham, picked up a man, Derek Johnston, whom she brought back with her.
Fiona and Derek helped the drunken R to bed, and Fiona then took Derek to the ‘party room’. They did not lock R’s door as it could only be locked from the outside by locking R in.
When Fiona went to bed, she showed Derek to the door, but did not see him out, despite guidelines that stated that all men should be seen off the premises after they had served their manly purpose to the women. Derek went back to R’s room and raped her.
R claimed that the MOD was in breach of its duty of care towards her by not providing doors with swipe card access rather than combination locks that could be left on latch.
The court held that the MOD was not in breach. There was no evidence that a swipe card system would have been any more effective in protecting R than the combination locks. The real problem was that Fiona had not escorted her man off the premises, as she was required to do, and as common sense would dictate. It was not unreasonable to give this responsibility to the women themselves and to expect them to carry it out.
34.9 Whippey v. Jones [2009] EWCA Civ 452
Andrew Jones was out on a run when he was knocked down and injured by an unleashed Great Dane called Hector, owned by an RSPCA inspector, Christopher Whippey. It was established that the owner only unleashed the dog when he was reasonably sure that there was no-one else around. HELD: Although there was clearly a duty of care on dog owners to make sure they did not injure members of the public, it was not unreasonable to let a dog off its leash when it was unlikely to do any harm.
“The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”. Before holding that a person's standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (ie. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.” per Aikens L.J. at para 16
35 THE SERIOUSNESS OF THE POTENTIAL HARM
35.1 The greater the harm that is likely to be inflicted by the act or omission, the less reasonable it will be to engage in it.