BREACH OF DUTY OF

CARE
Once it is established that a duty of care was
owed in the circumstances, it remains to be
examined to what extent must the tortfeasor, go
out of his way to ensure the safety of those
affected by his acts. In other words, what is the
degree/standard to which the duty of care is
required to be borne?
Breach of duty entails a standard of care and in
this respect, the law has designed a test know
as “the test of the reasonable man.”
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Test of a Reasonableman
Blyth V Birmingham Waterworks Co (1856) 11 Exch
781 at 784 where Alderson B said; “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.”
This test is an objective test Ses Nettleship v Weston
[1971] 2 QB 691
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Test of a Reasonableman
Glasgow Corporation v Muir [1943] AC 448, p 456.
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. The reasonable man is presumed to be
free both from over-apprehension and from over-
confidence.
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There are two issues involved here:
What is the standard of care required of the
defendant?
has this defendant fallen below the standard
demanded of him?
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Application of the Standard of Care
The claimant must show that the defendant took less
than the standard of care a reasonable man would have
taken in the circumstances and has there by been at
fault. In other words, there has been a falling below the
standard of care called for by the circumstances. The
court takes into consideration the following;
 Magnitude of the risk
Cost of averting injury/ applicability
Importance of the subject matter
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Magnitude of Risk
 Probability/ likelihood of the injury happening
Bolton v Stone[1951] I All ER 1078 The claimant was
struck by a cricket ball outside her home, the ball
having been hit out of the cricket ground. The House
decided against her. It was stated that reasonable men
do, in fact, take into account the degree of risk and do
not act on a bare possibility as they would if the risk
were more substantial.
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Magnitude of Risk
Haley v London Electricity Board[1964] 3 All ER 185, p
188, a case where a blind man using a white stick fell
over an obstacle near the end of a trench made by the
defendant’s workmen, Lord Reid commented: It appears
to me that the ordinary principles of the common law
must apply in the streets as well as elsewhere, and that
fundamentally they depend on what a reasonable man,
careful of his neighbor’s safety, would do having the
knowledge which a reasonable man, in the position of
the defendant must be deemed to have.
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Seriousness of the injury
Paris v Stepney Borough Council[1951] 1 AllER 42
The more serious the damage which will happen if an
accident occurs, the more thorough are the precautions
which an employer must take.
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Cost and practicability of precautions
The duty is to take reasonable care and it is not an
absolute standard. Many accidents could be prevented
but at what cost? A defendant is not expected to go
beyond reasonable precautions and the court has to
make an assessment of just how easy or difficult it would
have been to act differently and what the impact might
be on others if the defendant had taken alternative
action.
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Cost and practicability of precautions
Latimer v AEC Ltd [1953] 2 All ER 449. The claimant
slipped on the oily surface in part of the factory. The
factory had been badly flooded the water dispersed left
an oily film which was only partially covered by sawdust.
The Court decided against the workman on the basis
that the employer was not at fault in the circumstances.
Closing the factory would have meant loss of production
and lost wages for the appellant’s fellow employees and
such a drastic step was not justified in the circumstances
according to the House of Lords.
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Importance of the subject matter/ defendant’s activities
A risk may be one which the reasonable man might run if
the social utility of his activity is such that it is given more
weight over other factors. In Watt v Hertfordshire County
Council[1954] 1 WLR 835 In this case, the risk involved
in sending out the lorry was not so great as to prohibit
the attempt to save life. It is always a question of
balancing the risk against the end.
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Special Standard
The test does not apply where a special category of
persons is involved, the test is not applicable. These
categories include; (a) skilled/professionals’ persons (b)
infants (c) lunatics (d) the aged (e) to some extent
physically disabled persons.
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Professionals
Where the defendant is alleged to have some special
expertise and the harm to the claimant comes about
whilst the defendant is exercising his calling, the
standard of care is clearly not that of the reasonable
person in the street.
Bolam v Friern Hospital Management Committee [1957]
2 All ER 118 It is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent
man exercising that particular art.
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Professionals
Wilsher v Essex Area Health Authority[1986] 3 All ER
801
In my view, the law requires the trainee or learner to be
judged by the same standard as his more experienced
colleagues. If it did not, inexperience would frequently be
urged as a defence to an action for professional
negligence.
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Professionals
Lay Person
The defendant fixed a door handle on to a door.
carpenter would do it. The handle came off in the
plaintiff’s hand and he was injured. It was held that the
defendant had exercised such care as was required of
him and was not liable. The degree of skill was not to be
measured by the skill which the defendant actually
possessed but by the skill which a reasonably competent
carpenter would have.
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Children
Mullins v Richards[1998] 1 All ER 920
The question for the judge is not whether the actions of
the defendant were such as an ordinarily prudent and
reasonable adult in the defendant’s situation would have
realised gave rise to a risk of injury, it is whether an
ordinarily prudent and reasonable 15 year old schoolgirl
in the defendant’s situation would have realised as
much...