NEGLIGENCE - BREACH OF DUTY

THE REASONABLE MAN TEST

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THE REASONABLE MAN

A potential defendant will be negligent by falling below the standards of the ordinary reasonable person in his/her situation, ie by doing something which the reasonable man would not do or failing to do something which the reasonable man would do. See the statement of Alderson B in:

Blyth v Birmingham Waterworks Co (1856) 11 Exch 781.

The most popular definition of the reasonable man is that he is the ordinary man, the average man, or the man on the Clapham omnibus (Hall v Brooklands Auto Racing Club [1933] 1 KB 205).

THE OBJECTIVE STANDARD

The court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from this hypothetical character is objective; not taking into account the characteristics or weaknesses of the defendant in the instant case. For example, the standard of care to be expected from a leaner-driver is the same as that required by a qualified driver.

Likewise, a householder doing DIY work must not fall below the standard to be expected of a reasonably competent carpenter in doing the work:

UNFORESEEABLE HARM

If the reasonable person would not foresee a harmful consequence of an action, then a defendant will not be negligent in failing to take precautions. See:

Hall v Brooklands [1933] 1 KB 205

FACTORS TO BE WEIGHED IN ESTABLISHING BREACH

MAGNITUTE OF HARM

The court will consider the likelihood of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken.

Consider the following question: 'What is the possibility of harm being caused by road works to a blind pedestrian?'

Sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant.

DEFENDANT'S PURPOSE

If the defendant's actions served a socially useful purpose then he may have been justified in taking greater risks.

PRACTICABILITY OF PRECAUTIONS

The courts expect people to take only reasonable precautions in guarding against harm to others.

GENERAL PRACTICE

If the defendant acted in accordance with the common practice of others this will be strong evidence that he has not been negligent. For example, see:

Gray v Stead [1999] 2 Lloyd's Rep 559.

However, this will not prevent the courts from declaring a common practice to be negligent in itself.

SPECIAL STANDARDS APPROPRIATE TO PROFESSIONALS

Professionals will be judged by the standard of the ordinary skilled man exercising and professing to have that special skill. This is the basis of the 'Bolam test'.

People holding themselves out as having a specialist skill will be judged by the standards of a reasonably competent man exercising that skill.

STANDARD APPLIED IN SPORTING SITUATIONS

Spectators at a sporting event take the risk of any injury from competitors acting in the course of play, unless the competitor's actions show a reckless disregard for the spectator's safety.

A referee who oversees a match may also owe a duty of care to see that players are not injured:

Smoldon v Whitworth [1997] PIQR P133.

STANDARD APPLIED TO CHILDREN

Children cannot plead infancy as a defence to a tort. However, children and young people will usually be judge by the objective standard of the ordinarily prudent and reasonable child of the same age.

If a young person deliberately commits an action with an obvious risk of harm, they may be judged by the standards of an adult. See:

Williams v Humphrey, The Times, February 20 1975.

Alternatively, school authorities or parents, may be liable in negligence for failing to adequately supervise a child who causes harm to another.

PROOF OF NEGLIGENCE

IMPORTANCE OF EVIDENCE IN ESTABLISHING PROOF OF BREACH

The claimant bears the burden of proving, on the balance of probabilities, that the defendant was negligent. However, in some situations a claimant may be able to rely on the maxim res ipsa loquitur, i.e. the thing speaks for itself. By this rule of evidence, the mere fact of an accident occurring raises the inference of the defendant's negligence, so that a prima facie case exists. "You may presume negligence from the mere fact that it happens" (Ballard v North British Railway (1923) SC 43).

WHEN THE MAXIM 'RES IPSA LOQUITUR' APPLIES

There are three conditions that must be fulfilled before res ipsa loquitur applies.

(a) The defendant must have control over the thing that caused the damage.

(b) The accident must be such as would not normally happen without carelessness. See:

Scott v London and St Katherine Docks (1865) 3 H & C 596

ITS EFFECT

There are two opinions as to the effect of res ipsa loquitur.

(a) It raises a prima facie inference of negligence, which requires the defendant to provide a reasonable explanation of how the accident could have occurred without negligence on his part. If the defendant provides an explanation, the inference is rebutted and the claimant must prove the defendant's negligence.

(b) It reverses the burden of proof requiring the defendant to show that the damage was not caused by his failure to take reasonable care.

The opinion of the Privy Council is that burden of proof does not shift to the defendant because the burden of proving negligence rests throughout the case on the claimant. See:

Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.

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