Modelo simplificado

People who care for others and are responsible for them must take steps to see that they are reasonably safe. The standard of care is higher for carers of very vulnerable people, such as young children and the sick and disabled, than it is for others who are able to take some responsibility for themselves.

In Morrell v Owen and Others (1993), it was held that the duty of care owed to disabled athletes by coaches and organisers is greater, and the standard of care required is higher, than that owed to able-bodied athletes. The claimant in this case was a paraplegic amateur archer who was injured by a stray discus suffering brain damage as a result. The judge took the view that a blow from a misthrow was entirely foreseeable and that the BLASA coaches and organisers should have taken more comprehensive safety precautions.

In some instances, carers have been held to be guilty of the crime of manslaughter when they failed to discharge their duty to people in their care.

Such a finding would almost automatically result in the settlement of any civil claim against them. In the prosecution of the managing director of an activity centre responsible for a canoeing disaster at Lyme Bay in which several young people were killed, both he and his company OLL Ltd were found guilty of manslaughter. It was held that there was gross negligence on the part of the managing director, and this factor led to the finding of corporate manslaughter.

In Barrett v Ministry of Defence (1995), the defendants were liable for failing to take proper care of an airman who died when he inhaled his own vomit after a long drinking session. The same principle can be extended to professional people, who are responsible to their clients because professional people have knowledge or skills which are denied to others.

In Jebson v Ministry of Defence (2000), the Court of Appeal held that an adult should normally be aware of dangers created by his actions, and could not rely on others to exercise care on his behalf when he is drunk. However, if a duty of care was implied in respect of a person likely to be drunk, that duty could not later be avoided.

In Metropolitan Police Comr v Reeves (Joint Administratrix of The Estate of Martin Lynch (Deceased)) (1999), duty police officers had been informed by a doctor that a prisoner, Mr Lynch, was a suicide risk. They could have taken relatively simple precautions which would have prevented the prisoner committing suicide, and were held to have been negligent in failing to do so.

People with the power or duty to control others must take reasonable steps to prevent them from causing harm by their acts or omissions. Accordingly, parents and others who take charge of children may be primarily liable if their children are out of control and other people suffer foreseeable damage as a result.

In Watson v British Boxing Board Of Control (1999), the organisers of a boxing match were negligent when they failed to provide proper ringside medical facilities. The claimant suffered serious brain damage during a boxing match as a result of a blow to the head. As the Board had failed to provide both proper equipment and trained medical specialists, it was in breach of its duty to the claimant. The claimant was not volenti (that is, he had not consented to the injury).

In Bacon v White and Others (1998), a diving instructor was in breach of his duty of care to a novice diver who died while scuba diving. Although there had been a breach of the rules of the governing body of the sport, this did not necessarily define the standard of care in this case, but, nevertheless, the proper standard of care had not been met because the claimant was a novice and was owed a higher standard of care than in the case of skilled participants in this particularly hazardous sport. Similarly, referees owe a duty of care to

players, especially if they are young and new to the game (Smolden v Whitworth and Nolan (1997)).

7.2.10 Drivers

It would appear that all drivers are expected to exercise the same high standard of care. In Roberts v Ramsbottom (1980), the defendant driver, an elderly man, suffered a stroke and became mentally and physically incapable of driving safely. He was held to have been negligent when he caused accidents. By contrast, in Mansfield v Weetabix (1997), the Court of Appeal ruled that, if the loss of control occurs when the driver is unaware that he or she is suffering from a medical condition, whether the onset is gradual or sudden, the driver should not be found to be negligent.

Statistics show that most negligence claims involve road traffic accidents.

The basic principles of negligence apply equally to virtually all road users, and the standard of care is that of the reasonable road user. In very exceptional cases, however, there are some variations in this standard in the case of particular classes of individual. Reasonable drivers are not entitled to assume that other road users will exercise care, and they will be liable for foreseeable injury caused by their negligence. The Highway Code gives guidance on sensible driving, and the reasonable person is expected to be familiar with its contents. However, it is not safe to assume that there is negligence every time a person fails to observe the Highway Code. Failure to observe the Highway Code does not in itself give rise to liability on the part of the defendant, but this may be relied upon to establish liability in a civil case. If the defendant has committed a traffic offence, there may also be a finding of negligence, and, if the defendant has been convicted of a driving offence arising out the facts of the case where there is a negligence claim, that claim will usually be settled out of court in the claimant’s favour. Section 11 of the Civil Evidence Act 1968 allows evidence of a person’s criminal convictions to be used in civil proceedings, and the burden of proof will be reversed.

Car owners are expected to take reasonable steps to maintain their vehicles in good order. They should obtain MOT certificates when necessary, but a valid MOT certificate will not of itself absolve a defendant from liability for an accident caused by a defective vehicle.

The position of drivers has probably been influenced by the requirement of compulsory liability insurance. As Atiyah points out (see Atiyah, PS, Accidents, Compensation and The Law, 1999, Cane, P (ed)):

The tendency to objectivise the standard of care, and to ignore the personal characteristics of the defendant, which has gathered force during the past fifty years or so, may have been influenced by insurance considerations. Since the defendant is not going to pay the damages personally, judges may be (consciously or unconsciously) more concerned with the hardship to the

claimant … and may therefore be more willing to find a defendant negligent even though he has done nothing morally culpable.

In Nettleship v Weston (1971), a very inexperienced learner driver crashed and injured her instructor. Her instructor had knowingly put himself in a relationship with an underskilled person. She was, however, held by the Court of Appeal to have been negligent. Although she was only learning to drive, she should have exercised the same standard of care as a reasonably competent experienced driver, although she was told by Lord Denning that she should not regard herself as morally blameworthy.