Factors that determine the standard of care

What is standard of care?

The standard of care is the way in which a person should act to make sure that
they do not breach their duty of care. The things that need to be done to meet
this standard of care are different in every situation, but there are a few
guidelines which must always be followed.
A person must act as a reasonable person of the same skills would in the same
situation. For example, a carer would need to follow the actions of a reasonable
carer in any duty of care situation. This also means that less would be expected
of an untrained family member when caring for a person with a disability than
of a trained professional carer, because the carer has special skills which they
are expected to use.
Exactly what this reasonable person would have done is something which the
court decides. When looking at what the reasonable person would have done,
the court will look at certain things, including:
The possible seriousness of that harm
The risk of harm occurring
The burden (difficulty) of removing or reducing the risk
The usefulness of the activity
General practice

1. Foreseeability of Harm

The foundation of liability for negligence is the knowledge that the act or
omission involved danger to another. Negligence presupposes a duty of taking
care and the duty of taking care presupposes knowledge or its equivalent. A
person cannot be held responsible on the theory of negligence for an injury
unless there is a breach of a duty.

The foreseeability of harm is a prerequisite for the recovery of damages. The

foreseeability of the danger establishes the duty. The doctrine of foreseeability
is the basis of tortuous liability. The true basis of foreseeability is that men
should be charged only with that knowledge or notice of what a reasonable or
ordinarily prudent person would have foreseen. The law recognizes that the
conduct of a reasonable man varies with the situation with which s/he is
confronted. Thus, when a person has no reason to suspect a danger, s/he is not
required to look for it. Nor can a person be charged with a failure to observe or
anticipate danger when, in similar circumstances, an ordinarily prudent man
(Reasonable Man) would not have done so.
The degree of foreseeability of the third persons injury is far greater in the case
of his/her contemporaneous observance of the accident than that in which s/he
subsequently learns of it.
Bourhill v Young [1943] AC 92

The claimant was a pregnant fishwife. She got off a tram and as she reached to
get her basket off the tram, the defendant drove his motorcycle past the tram at
excessive speed and collided with a car 50 feet away from where the claimant
was standing. The defendant was killed by the impact. The claimant heard the
collusion but did not see it. A short time later, the claimant walked past where
the incident occurred. The body had been removed but there was a lot of blood
on the road. The claimant went into shock and her baby was still born.
House of Lords held that there was insufficient proximity between the
motorcyclist and the claimant. There was not a duty of care; she was not present
at the scene of the accident (she had arrived after the accident had occurred).
[The Courts require a very close degree of proximity in these types of nervous

shock or psychiatric harm cases]

You can also refer Hall v Brooklands Auto Racing Club [1933] 1 KB 205, CA

2. The Magnitude of the Risk

The magnitude of the risk of potential injury, and justifiable risk-taking

The degree of care which must be taken must be equal to the risk that is to be
avoided. Even if the harm is foreseeable, but is so unlikely to happen. D will
not be held liable. This is best illustrated by cases:
Bolton v Stone [1951] 1 All ER 1078, HL Defendant was a cricket club from
where a cricket ball was struck over a 17-feet fence. It hit C who was standing
on the pavement outside her house. The ball must have travelled about 100
yards, and such a thing had happened only about six times in thirty years.
During a cricket match a batsman hit a ball which struck and injured the
respondent who was standing on a highway adjoining the ground. The ball was
hit out of the ground at a point at which there was a protective fence rising to
seventeen feet above the cricket pitch. The distance from the striker to the fence
was some seventy-eight yards and that to the place where the respondent was hit
about one hundred yards. The ground had been occupied and used as a cricket
ground for about ninety years, and there was evidence that on some six
occasions in a period of over thirty years a ball had been hit into the highway,

but no one bad been injured. The respondent claimed damages for negligence
from the appellants, as occupiers of the ground.
HELD: for an act to be negligent there must be, not only a reasonable possibility
of its happening, but also of injury being caused thereby; on the facts, the risk of
injury to a person on the highway resulting from the hitting of a ball out of the
ground was so small that the probability of such an injury would not be
anticipated by a reasonable man; and, therefore, the appellants were not liable to
the respondent.
You can compare Bolton Case to the following cases:
Hilder v. Associated Portland Cement Manufacturers Ltd [1961] QBD. The
defendants permitted some small boys to play football on their land which was
close to a road. Inevitably one of the boys kicked the ball on to the road and
caused the claimants husband to have an accident, in which he was killed. He
was not wearing a crash helmet and fractured his skull, wearing crash helmets
was not compulsory then. It was held the defendants were negligent by allowing
the boys to play football on the green. The risk of injury to a road user was
much greater than the risk in Bolton. The land was only about 15 yards from the
road and the risk of injury was not one which the reasonable man would have
disregarded.
In Haley v London Electricity Board [1965] HL a blind man fell into a trench
dug by the electricity company. A temporary fence put around the trench was
missed by the man's stick. The language of the speeches is not in terms of risk
explicitly but it is clear that risk is at the heart of the case.
It was said that what the workmen did was just sufficient to attract the attention
of ordinary people with good sight exercising ordinary care, but the proportion
in the whole country [of blind people] is near one in 500.

When the risk of harm is greater D must take greater precautions too.
Paris v Stepney Borough Council [1951] HL an employee with one good eye
was not wearing goggles and was blinded in his good eye.
Lord Normand
"a disability which, though it does not increase the risk of an accident's
occurring does increase the risk of serious injury
"The test is what precautions would the ordinary, reasonable and prudent
man take?
"...Salmond on the Law of Torts (10th ed) ...says: 'There are two factors in
determining the magnitude of a risk- the seriousness of the injury risked, and
the likelihood of the injury in fact being caused.'."
Thompson v Home Office [2001] CA D (prison authority at a YOI) not liable
to a prisoner who had been injured by a razor attack from a fellow
inmate. Although foreseeable D had to make balancing judgments between
tight security and a regime aimed at rehabilitation in which the inmates were
required to exercise responsibility. Although a system of withdrawing razors
from inmates each day would provide a greater degree of control it would be at
a cost to something else.
Morris v West Hartlepool Steam Navigation Co Ltd [1956] HL. An 18 year
old seaman fell into an unguarded hold (below deck area where cargo is stored)
and was seriously injured.
Notwithstanding the evidence of a general practice not covering holds D was
guilty of negligence in not fencing the hold, because
1. the risk to which appellant was exposed by reason of the unprotected
hatch was an obvious risk,
2. the consequences of falling into the hold would obviously be serious,

3. the risk could readily have been avoided

Sometimes the precautions necessary will not be in the interest of either of the
parties:
In Withers v Perry Chain Co Ltd [1961] CA an employee suffered dermatitis
as a reaction to the greasy conditions in which she worked. She left her job and
later came back and asked for her job back. The employers gave her the best
other work they had but the dermatitis returned.
The employers were under no duty to dismiss or to refuse to employ an adult
employee who wished to do a job merely because there might be some slight
risk to the employee in doing the work, so the employer was not liable.
In Glasgow Corporation v Muir [1943] HL it started to rain during a party in a
park. The tea urn was carried to the park tearoom and was dropped scalding six
boys.
Lord Macmillan
"... The urn...was not an inherently dangerous thing and could be carried
quite safely and easily by two persons exercising ordinary care...In my
opinion, Mrs Alexander had no reason to anticipate that such an event would
happen..."

3. The practicality of precautions (Burden of precaution)

If the expense and difficulty of taking precautions to avoid the risk are
disproportionate to the risk D can escape liability.
In Bolton v Stone [1951] 1 All ER 1078, HL
Lord Oaksey said that the standard of the reasonable man did not require a man

to take precautions against every foreseeable risk because life would be almost
intolerable if the ordinarily careful man were to attempt to take precautions
against every risk which he can foresee.
The risk was so slight and the expense of reducing it so great that a reasonable
cricket club would not have taken any further precautions.

Latimer v AEC Ltd [1953] HL D a factory owner where C slipped on an oily

film and injured his ankle. The sawdust put down to soak up liquid did not cover
the entire floor. The oily film was due to water from an exceptionally heavy
storm. D had done all that a reasonable person would do in the circumstances;
they could not have eliminated the risk completely without closing the
factory, which was too stringent a measure to have been expected of the
defendant to prevent a relatively minor risk created by a wet floor.
Knight v Home Office [1990] QBD a prisoner committed suicide during a 15minute gap in being watched. It was held that the prison medical staff had not
been negligent in failing to keep the deceased under continuous observation
since their decision to observe him at 15-minute intervals was a decision which
ordinary skilled medical staff in their position could have made
Walker v Northumberland CC [1995] QBD. A social worker had a nervous
breakdown because of the pressure of work, when he returned to work he was
given no further assistance with his workload and became ill again. The local
authority ought to have provided additional assistance to reduce Cs workload,
even at the expense of some disruption of other social work and so had acted
unreasonably and in breach of its duty of care

4. The usefulness of the act of the defendant (Utility of the

Conduct)
The greater the social utility (useful to society) of the defendants conduct, the
less likely it is that the defendant will be held to be negligent.
Asquith LJ said in Daborn v Bath Tramways Motor Co and Trevor Smithey
[1946] 2 All ER 333, CA
If all the trains in this country were restricted to a speed of five miles an
hour, there would he fewer accidents, but our national life would be
intolerably slowed down. The purpose to be served if sufficiently important,
justifies the assumption of abnormal risk.
(The case actually involved a left-hand-drive ambulance).
On April 5, 1943, D was driving an ambulance with a left-hand drive and with
one driving mirror on the left-hand side attached to the windscreen. The
ambulance was completely shut in at the back so that D was unable to see
anything close behind her. On the back of the ambulance a large warning notice
was painted: Caution Left hand drive No signals. Unaware of the fact that
a motor omnibus was close behind her and that its driver was trying to overtake
her, D, wishing to turn into a lane on the off-side of the road, started to edge
from the near side of the road towards the right and made a signal with her left
hand that she was going to turn right. As she was turning to the right, a collision
occurred between the ambulance and the motor bus, and D sustained severe
injuries. In an action for damages for negligence brought by D against the driver
of the motor bus and his employers, it was contended by the defendants that D
was guilty of negligence in that she had omitted to make certain that there was

no vehicle behind her before turning to the right :HELD: (i) upon the facts of the case, the driver of the motor omnibus was
guilty of negligence.
(ii) There was no negligence on the part of D, because she had given the correct
hand signals before staring to turn and there was a warning notice on the back of
the ambulance that it was a left-hand drive vehicle and that no signals could be
given.
(iii) (per Asquith LJ) in considering whether reasonable care had been observed,
it was necessary to balance the risk against the consequences of not assuming
that risk. In view of (a) the necessity in time of national emergency of
employing all available transport resources, and (b) the inherent limitations of
the ambulance in question, D had done that entire she could reasonably do in the
circumstances.
Watt v Hertfordshire CC [1954] CA. D a local authority that ran the fire
brigade. C a fire fighter was injured by a jack that slipped on the back of a lorry
used to carry heavy lifting equipment needed at a serious road accident where a
person was trapped. The lorry, which usually carried the equipment, was
engaged in other work at the time, and the fire officer ordered the equipment be
loaded into the back of a less suitable lorry.

Denning LJ said that one must balance the risk against the end to be achieved.
The saving of life or limb justified the taking of considerable risks, and in cases
of emergency, the standard of care demanded is adjusted accordingly.
However, if the accident had occurred in a commercial enterprise the claimant
would have recovered (obtained damages). He said that the commercial end to

make profit is very different from the human end to save life or limb. But,
drivers of fire engines do not have carte blanche in their rush to get to the scene
of a fire.
And this final point was discussed in:
Ward v London County Council [1938] a driver of a fire engine was held to
have been negligent in driving through a red traffic light. Taking the extra time
to slow at junctions will not make a difference in the emergency situation. No
reason to injure others on the way to an emergency

5. Common Practice in the profession

(General Practice in a profession can still amount to negligence)
It is very good evidence that defendant has not been negligent if he is following
a practice that is common in his profession. In Savory & Co v Lloyds Bank
Ltd (1933) HL (a case involving stockbrokers cheques) it was pointed out that
this is not always so.
Herald of Free Enterprise, Re, Appeal by Captain Lewry (1987)
Independent, 18 December HC the practice of cross-Channel ferry captains in
setting sail with the bow doors open constituted negligence despite the fact that
the practice was wide-spread.
Common practice of a profession can be negligent, in Edward Wong (Finance)
Co Ltd v Johnson Stokes and Master [1984] PC it was established

conveyancing practice in Hong Kong for purchase money to be advanced to a

vendors solicitor in return for undertakings to forward executed documents of
title. In this case the receiving solicitor ran off with the money. There was an
inherent and foreseeable risk of embezzlement albeit remote. The defendants
had been negligent in failing to foresee and take precautions against possible
loss. Claimant won.
In Brown v Rolls Royce Ltd. (1997) EAT the claimant contracted
dermatitis. Her employers did not provide a barrier cream commonly used by
other employers but it was not proved that the cream would have prevented
dermatitis. Claimant lost.
In considering whether a professional has been negligent the courts make
allowance for the existence of differing views within the profession and will not
normally choose between the different schools of thought, holding by the one to
be negligent and the other not, this is discussed in the section The Reasonable
Man Test applied to professionals and in particular Maynard v West Midlands
Regional Health Authority [1985] HL