Standard Of Care In Negligence Law

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Introduction

The law of tort consists of principles and rules that pinpoint the various civil wrongs and the liability they evoke. It is inherited from English Common Law traditions and at times can be a millennium old. The tort of negligence is a substantial, though relatively modern area of tort. Whereas previously the law of tort dealt almost exclusively with intentional wrongdoing, in negligence one could seek compensation if there was unintentional fault as well. It was in the early 19th century when a discernible principle of fault liability began from which the modern concept of negligence was conceived .

The law of negligence continues to be an extremely prevalent area of tort. Within negligence the plaintiff must prove on the balance of probability that: the defendant owed the plaintiff a duty of care, the defendant breached this duty by failing to exercise a standard of care required of him, and that it was the defendant that caused the damage to the plaintiff.

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Standard of Care and the Reasonable Person

Once it has been proved that the defendant owed the plaintiff a duty of care to avoid the damage, the plaintiff must then prove that the defendant’s actions or omissions fell short of the standard of care required by the law upon him. Then it can be said that the defendant breached his duty of care to the plaintiff. The courts shall asses this through the objective standards of reasonableness, and the defendant is judged against a “reasonable person” in society. Hence, as mentioned by Lord MacMillan the defendant need not be perfect. Rather, they must act reasonably, and may make reasonable and justified oversights and mistakes . A definition for the reasonable person was given by the court in Blyth v Birmingham Waterworks Co :

Negligence is the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would not do

However, there is no exhaustive list of rules that one must follow to be a reasonable person. The judge looks at the particulars of each case and decides what a reasonable man would have foreseen and done. Lord MacMillan himself said: ‘here is a sense in which the standard of care of the reasonable man involves in its application a subjective element’.

The objective standard is not without its critics. Criminal lawyers are especially critical of the standard. They argue that the standard must be one that everyone is capable of living up to, which is not possible in cases such as where the defendant is mentally ill . Feminists are also critical of the standard and argue it is still gendered which immediately puts women at a disadvantage. There is also the argument that factors such as prejudice and bias discredits the objective standard.

However, in response to this it can be asserted that there has been no legitimate alternative to the objective rule that would take out the factors aforementioned. Moreover, those who are in favour of the standard say it prevents the accused to escape based on their peculiarity or personality quirks which the subjective standard would allow .

Moreover, the courts do take certain aspects into account, and make exceptions based on them. For example, a blind person will not be required to be able to avoid accidents as compared with a sighted person as shown through McKibbin v Glasgow Corporation . In the same vein a deaf person is not required to hear, nor is someone who is ‘lame’ required to be agile .Instead they are required to act like the reasonable person with their physical deformity – such as what a reasonable blind person would have done in the same situation. Thus the law does not ask ‘the impossible by conforming to physical standards which he cannot meet’ .

Nor does the law expect one to be knowledgeable in every aspect. Rather, they expect the reasonable person to know what McMahon and Binchy call the ‘basic facts of experience’. These include things such as the basic laws of nature and physics, furthermore the law makes slight exceptions for beginners as well. An example of this is in the case of Nettleship v Weston in which the plaintiff – an experienced driver – was injured whilst giving driving lessons to the defendant – a beginner. Despite being a careful driver and driving slowly at the time of the incident, the defendant panicked and the car hit a lamp and the plaintiff was injured. It was held that the beginner is not expected to drive with the skills of an experienced driver. Thus the defendant acted like a reasonable person with the amount of skills she possessed, and was not held liable.

In the same vein, a general practitioner is not expected to have the knowledge of a specialist but they are expected to refer their patients to specialists when it is necessary. Furthermore, as shown through O’Donovan v Cork County Council and Others a specialist is only expected to have the skills of those who specialize in the same field as them.

Application of the Standard

Whilst applying the standard, the judge decides on the facts of each case whether a person has acted ‘reasonably’. When reaching a decision the courts also apply four factors which aid them in assessing how a reasonable person would act. These four factors are: the probability of the accident, gravity of the injury, the cost of eliminating the risk, and the social utility of the conduct.

a. Probability of the Accident

The first criteria that is looked at by the courts is the probability of the accident. Conduct will not be seen as negligent simply because it could be foreseen. As said by Lord Norman: ‘It is not the law that precautions must be taken against every peril that can be foreseen by the timorous’ . Instead, the risk must be “reasonably foreseeable”. Hence, a reasonable person would not dismiss it as fanciful or implausible.

This is illustrated in O’Gorman v Ritz (Clonmel) Limited in which the plaintiff suffered an injury due to the seats of the cinema. The defendant was not held to be liable as there was evidence that about one million people sat in the seats over the course of seven years and there had been no previous injuries or complaints. Hence, the courts believed the accident was so unlikely, that to expect them to have foreseen it would have been stringent and fanatic

Hilder v Associated Portland Cement Manufacturers Ltd is a case in which the defendant was held liable. The defendant owned land adjoining a highway and allowed children to play on it. Whilst they were playing a ball went over the low wall and onto the highway – hitting a passing motorcyclist. The cyclist fell, was fatally injured and action was brought against the defendants. It was concluded that a reasonable man in the position of the defendants would have recognized the risk of injuring those on the highway – and the risk was not small enough that he could reasonably disregard it. Hence the defendant had failed to take reasonable care and the widow of the cyclist won in her claim.

The probability of risk of injury, however, can be shifted by other factors. This was indicated in the case of Walsh v Family Planning Services by the Irish Supreme Court. In which it was said where a patient wanted to undergo a surgery that is not necessary – the doctor must discuss all the known risks of injury. As pointed out by Healy, this can be said to be far too strict and even impractical, and has also been criticized by other Judges. However, it is what is applied in this jurisdiction, where any applicable risk, no matter how remote has to be disclosed to patients.

Thus, the probability of the accident is an important factor looked at by the courts while deciding what a reasonable person would do. In which the likelihood of an act or omission resulting in injury is directly proportional to the likelihood of the reasonable person acting to avoid it .

b. Gravity of the Injury

The criteria for this factor was identified in Read v J. Lyons & Co Ltd. by Lord MacMillan as: ‘the greater the risk of harm, the more stringent the precautions which must be taken’ . It was also said that the magnitude of the risk is decided through two factors – the likelihood of the risk materializing, and the gravity of the damage if it does materialize .

It was the employment this factor in Hughes and Roy v Ballynahinch Gas Co.Ltd which aided the court’s decision of the defendants being held liable. In this case there was a gas leak and while inspecting the premises, the manager of the company looked for an escape with a lit match. This resulted in a gas explosion which shattered glass and seriously injured plaintiffs who were being shaved at the time. The court held that they were liable as there was “the highest degree of reasonable care is that which is due by this company that makes its living by supplying gas to the public” . This case also illustrates that whilst considering the gravity of the injury one not only looks at the circumstances but at the plaintiff who allowed it to occur.

Another instance in which this factor was used is in the case of Paris v Stepney Borough Council . In which a one-eyed worker was hit by a splinter causing him to go blind in the other eye, and would have been avoided had he been wearing goggles. The court considered the fact that the employer knew of the partial sightedness and hence knew that the consequence would have been graver in this case. Hence they should have taken far better care to ensure his safety, and they were held liable.

c. The Cost of Eliminating the Risk

The cost of eliminating the risk is the third factor – and is closely linked with the previous two. As the higher the probability of an accident and the more serious the injury – the more efforts and expenses a reasonable person would take to avert it. As said by Denning LJ: ‘you must balance the risk against the measures necessary to eliminate the risk’.

This factor was looked at in the previously mentioned O’Gorman case. Here, it was taken into account that the risk was extremely small and for it to be eliminated all the seats would have to be replaced in the theatre. Thus illustrating that a slight risk can be run if the cost to eliminate it would be extremely and unreasonably high. In Muldoon v Ireland it was held that the prison authorities did not have to check the prisoners for weapons every time they moved from one part of the prison to another. As eliminating this risk was far too onerous and costly on the state.

In the case of Donaldson v The Irish Motor Racing Club & Thompson it was not purely monetary cost that the court considered. The defendant were organisers of a motor race where a car veered off the road and hit spectators. However, Kingsmill Moore J pointed out that such activities “usually involve violence in the form of high speed or vigorous muscular exertion or both”, furthermore that to remove spectators far enough to guarantee safety would “in most cases so diminish the view as to render watching unattractive and put an end to the entertainment” . Hence, it was decided that the defendants were not liable.

Another aspect that may come under this factor is if in eliminating one risk, another risk is created – one may be allowed to run the first risk. Though this has not yet occurred in this jurisdiction it was decided so in the High Court of Australia in the case of Mercer v Commissioner for Road Transport and Tramways. Though this is not binding, it can be used as persuasive precedent.

d. Social Utility of Conduct

The final factor while applying the reasonable man standard is the social utility of the conduct of the defendant. The magnitude of the risk created is weighed against the social utility of the conduct of the defendant; consequently certain risks may be considered reasonable that would otherwise fail to do so .

Consequently, rescuers are treated with greater leniency than an average man . Fire brigades and emergency responders can drive at speeds and take traffic risks that others would not be allowed to. As their work is so vital to society and in the name of altruism they are given more liberty. The rationale for this is explained by Denning LJ as: ‘You must balance the risk against the end to be achieved’ .

This factor has been employed by the Irish courts in Whooley v Dublin Corporation in which a fire hydrant box had been opened by an unknown person, and subsequently the plaintiff tripped over it. It was claimed that the defendant was negligent in installing fire hydrants that were too easily opened. However, it was found by the court that the hydrant had to be ‘readily accessible to the fire brigade in the case of fire’, coupled with the necessary purpose it held – the defendant was not liable .

This line of thinking was furthered in Gaffey (plaintiff) v Dundalk Town Council where it was noted that perhaps there was not even a duty of care to check fire hydrants for tampering frequently. Only if they were made aware of tampering and omitted to inspecting it would they perhaps be held liable . This clearly illustrates the degree of leniency the courts may be willing to offer in cases of high social utility.

This factor is not reserved to fire hydrants however. Indeed, it has been employed in cases with hospitals such as in Derek Sheehan v Midwestern Health Board and Abid Khattak . As well as with regards to An Garda Síochána in the case of John Fagan v Garda Commissioner and Others . In which it was alleged that a member of An Garda Síochána Public Order Unit in Dublin negligently injured the plaintiff in the process of controlling a riot. The court held that they were not liable as the court had an entitlement to give indulgence when a defendant had high social utility, and that in this case the defendant was ‘carrying out a very significant public order function at the time’ . Thus, the courts undoubtedly take into account the social utility of the defendant at the time, which Fleming notes is due to the fact that ‘there is a world of difference between throwing a burning object into the street below just for the fun of it or in order to save a house on fire’

Conclusion

In conclusion, the tort of negligence is a vast and near ubiquitous area of tort law. A fundamental area of negligence is the standard of care. It is the breach of the standard of care that a plaintiff must prove in order to win a case. The test for this is, as Lord MacMillan correctly stated is an objective one. The reasonable person test the courts employ decide based on the facts what a ‘reasonable person’ would have done in the same situation based on the facts. This test does not require perfection from the defendants, nor does it take into account a higher standard they usually adopt – as mentioned by Lord MacMillan. Though there are criticisms of the test, it is firmly rooted in both English and Irish law, and as of now has proved itself to be the most fitting test for the standard of care

Whilst employing the test, the courts look at the facts of the case, coupled with four main factors. The factors being: the probability of the accident, gravity of the injury, the cost of eliminating the risk, and the social utility of the conduct. With all this taken into account the court then decided if the actions of the defendant were reasonable or not. Though the test is not without its critics – it is firmly rooted in both English and Irish law. Furthermore, as of now, it has proved itself to be the most fitting and appropriate test for the standard for one of the cornerstones of negligence in tort – the standard of care.

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