BREACH OF DUTY TO TAKE CARE

Once it has been determined that a person owes a duty to take care to another person, it is then necessary to determine whether there has been a breach or contravention of that duty.

This really involves two different issues:

What is the standard of care that must be observed? What evidence is there that that standard of care was not observed?

 WHAT STANDARDS OF CARE MUST BE OBSERVED?

At one time there were some judicial statements and decisions indicating that different standards of care were to be observed in different situations. There were some situations where a person would be expected to exercise a very high degree of care, and some situations where a lesser degree of care would be expected.

Different standards of care

Thus, in the eighteenth century Lord Holt CJ, in the case of Coggs v Bernard (1704) 92 ER 107, spoke of different standards of care where a person was looking after the goods of another person. In some situations there was liability only if "gross neglect" was proved, in other situations there was a duty to exercise "the utmost care," so that slight carelessness could give rise to liability.

Again, earlier this century, it was considered that when a person was in control of things that were inherently dangerous such as loaded firearms, poisons, ammunitions and explosives (things dangerous per se as they were often termed), there was a duty to take special care: "a peculiar duty to take precaution", as Lord Dunedin described it in Dominion Natural Gas Co v Collins [1909] AC 640, 646.

Single standard of care

Since the middle of the twentieth century, however, the courts and also commentators have preferred to speak of only one standard of care*, i.e. a duty to take reasonable care, the degree of care that a reasonable person would take in the circumstances.

Such a standard of care has the two following features:

an objective standard of care*; and a reasonable standard of care*.

We will now consider each of these aspects.

An objective standard of care

It is the standard of a reasonable person, not the standard of the defendant that is applied. In other words it is an objective standard not a subjective standard. It may therefore be higher than, or lower than, or the same as, the care that the defendant in a particular case would take or observe.

As Lord Macmillan explained in Glasgow Corporation v Muir [1943] AC 448 (Reading 8.1) at 457:

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. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man in presumed to be free both from over-apprehension and from over-confidence.

It is sometimes said in England that the standard of care is the standard of the "the man on the Clapham omnibus", or in America that the standard of care is the standard of "the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves" – see Greer LJ in Hall v Brooklands Auto – Racing Club [1933] 1 KB 205, 225.

A standard of reasonable care

It is the standard of care that a reasonable person would take in the circumstances. In other words it is not a fixed or uniform standard, but is one which is dependent on all the circumstances of the particular case.

In Glasgow Corporation v Muir (Reading 8.1) (above) Lord Macmillan said, 456:

‘My Lords, the degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. "

Thus to drive down a busy street in a town at 50 kilometres per hour will show a lack of reasonable care, but, on the other hand, to drive down an empty highway or motorway at 50 kilometres per hour would not constitute a lack of reasonable care. Again to throw a stone on an empty beach would not demonstrate a lack of reasonable care, but to throw a stone in a crowded restaurant would certainly show a lack of reasonable care.

The main circumstances that the courts will take into account in determining what is the standard of care that a reasonable person would observe (what the man in the Clapham omnibus, and the man who mows the lawn in his shirt sleeves after coming home from work would adopt), are as follows.

The likelihood of harm arising

The more likely it is that harm will be caused by what is done, the more care that a reasonable person would take, and conversely the less likely it is that harm will be caused, the less care that it is reasonable to expect will be taken. Thus in Bolton v Stone [1957] AC 850 (Reading 8.2), a cricket club was held to be not liable in respect of a cricket ball, which was hit from a cricket pitch and sailed over a fence which was 17 feet high and 28 yards from the pitch, because it was so unlikely that this would happen. Evidence was given that it had occurred only 6 times in the previous 28 years.

On the other hand, in Haley v London Electricity Board [1965] AC 778 (Reading 8.3), an electricity board was held liable in negligence because the barrier its employees had erected around a hole they had made in the road. Whilst it was sufficient to protect pedestrians with adequate sight, it was not adequate for blind persons, and there were sufficient numbers of blind persons in that part of London to warrant taking them into account.

The gravity of the harm

The more serious or grave the harm that is likely to be caused to a person, the more care that a reasonable person would expect to take. Conversely, the less serious the harm that is likely to be caused, the less care that a reasonable person would expect to take.

Thus in Paris v Stepney Borough Council [1951] AC 367 (Reading 8.4), the House of Lords held that when an employer knew that its employee had only one eye, it should have provided goggles for his use, even though they might not have been necessary for employees with two good eyes, because injury to the one good eye would be much more serious to that particular employee.

The difficulty and expense of taking precautions

The more difficult and expensive it is to take precautions, the less precautions will a reasonable man expect to be taken. Conversely the easier and cheaper it is to take precautions the more such precautions will be expected to be taken. In Daborn v Bath Tramways Motor Co [1946] 2 All ER 333 (Reading 8.5), during World War II in England, the Court of Appeal held that it was not negligent to drive a left-hand drive vehicle which was not

fitted with signals, even though most vehicles were right-hand drive and fitted with signals, because to convert left-hand drive vehicles and fit them with signals would be so difficult and expensive.

If this factor is taken right to its completely logical conclusion, it would tend to convert the standard of care from one which is impersonal and objective to one which is personal and subjective, i.e. dependent on the skill and resources of the defendant. This seems to have happened with regard to responsibility for natural dangers and hazards. The Privy Council has held that where a hazard or danger had arisen from natural causes, a tree which is set on fire by a bolt of lightening, then the courts should have regard to the resources of the actual landowner on whose land the hazard a danger has occurred. "In such situations," the Privy Council said, "the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances." Goldman v Hargrave [1967] AC 645, 663 (Reading 7.4).

Usual practice

The more that the action in question conforms with what is usually done by people in the same kind of situation, the more likely it is that that action will be held to be reasonable. Conversely the more that the action in question departs from what is usually done the more likely it is to be regarded as unreasonable. This is an especially significant factor in occupations, industries and professions where a body of practice has developed and is usually observed. Compliance with that practice is a strong indication of reasonableness, and conversely non-compliance with that practice is a strong indication of unreasonableness.

Thus in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 (Reading 8.6), the House of Lords held that an important factor in establishing that a doctor had not failed to exercise reasonable care when he failed to inform a patient of the possibility of an operation causing damage to the spinal cord, was that the doctor had acted in accordance with accepted medical practice.

On the other hand, compliance or non-compliance with usual practice, whilst indicative of non-negligence or negligence, is not conclusive, and it may be that the usual practices are considered by the court not to provide a reasonable standard of care, or alternatively to provide an excessive degree of care.

Thus in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 (Reading 8.7), the House of Lords held that an employer failed to ensure reasonable care for the safety of its workman when working on a roof, although there was evidence that what the employer had done was "perfectly in accord with good practice".

Again in Edward Wong Finance Co Ltd v Johnson Stokes and Masters [1984] AC 296 (Reading 8.8), the Privy Council held that although a solicitor in Hong Kong had acted in accordance with normal professional practice in Hong Kong, the solicitor nevertheless failed to exercise a reasonable standard of care to protect his client’s money from embezzlement, because the practice of the legal profession in Hong Kong did not provide sufficient care for clients.

Statutory standards

If legislation or subsidiary legislation requires certain action to be done, or prohibits certain actions, this can be taken as an indication of what is regarded by the legislature or the subsidiary law maker as reasonable or not reasonable. Again it is not conclusive, but it is a pointer or an indicator of what should be considered to be reasonable or unreasonable by the courts.

Thus in Budden v BP Oil Co Ltd (1980) 124 Sol Jo 376 (Reading 8.9), where the plaintiffs were alleging that they had suffered lead poisoning from the defendant’s leaded petrol, the English Court of Appeal took account of the fact that the lead content was within the limits permitted by government regulations, as an indication that the lead content was not unreasonably high.

Public utility of action

The more important an action may be for the public benefit, the more a court may consider that it is reasonable to run some risk, whereas the less important an activity the less risk of injury to others is justified. Thus in Watt v Hertfordshire County Council [1946] 2 All ER 333 (Reading 8.10), the English Court of Appeal held that it was not negligent for a fire truck when answering an emergency call to carry a fire appliance that was not properly secured, because the vehicle which would normally carry it was not available.

PROOF OF LACK OF REASONABLE CARE

The onus or burden of proving that a person has failed to exercise reasonable care is upon the person who alleges that there has been such a failure. Usually this is the plaintiff in proceedings at first instance, but occasionally it will be the defendant, e.g. if the defendant is making a counter-claim of negligence against the defendant in proceedings at first instance.

If a case has been taken on appeal to an appellate court, then the burden will be on the appellant to establish that the judgment appealed from is wrong, in its finding of reasonable care or of lack of reasonable care, as the case may be, but if the respondent has lodged a cross-appeal against a judgment which found reasonable care or lack of reasonable care, then the onus or burden will be on the respondent to satisfy the appellate court that the judgment appealed from is wrong.

Degree of reasonable care

As in all civil cases the evidence must be such as to establish lack of reasonable care on the balance of probabilities i.e. that it is more likely than not that there was lack of reasonable care by the person alleged to be negligent. If the evidence is equally balanced, so that it shows that there may have been, or there may not have been, a lack of reasonable care, this is not sufficient to prove failure to take reasonable care. The evidence must be such that it shows that lack of reasonable care is more likely. On the other hand it is not necessary to go as far as proof beyond reasonable doubt. Evidence which shows that lack of reasonable care is likely to have occurred is sufficient.

Burden of proof

Because the legal burden of proof* rests and remains upon the person in a court of first instance who is alleging that there has been lack of reasonable care, this means that that person must produce

evidence which directly indicates that there has been a lack of reasonable care e.g. witnesses who saw a motor vehicle being driven at 50km per hour in a busy street;

evidence which indirectly or inferentially indicates a lack of reasonable care i.e. evidence from which a lack of reasonable care may be implied or inferred, e.g. long black skid marks on the wrong side of the road.

Likewise when a case is taken on appeal, the person who is alleging lack of reasonable care must be able to show in the record of the proceedings of the court appealed from:

evidence which directly indicates that there has been a lack of reasonable care;

evidence which indirectly or inferentially indicates a lack of reasonable care i.e. evidence from which a lack of reasonable care may be inferred is implied.

Hearsay evidence

Evidence that directly indicates lack of reasonable care will normally take the form of testimony by witnesses who personally observed what was done or not done by the person alleged to have been negligent. Hearsay evidence is, in accordance with usual rules as to the admission of evidence in court proceedings, not normally admissible. For this reason convictions of a person in criminal proceedings of conduct which was taken without reasonable care are, under common law, not admissible in civil proceedings as proof of lack of reasonable care. In England, however, legislation was enacted to enable convictions in criminal cases to be produced in civil proceedings, as evidence of lack of reasonable care. This legislation, the Civil Evidence Act 1968 (Reading 8.11a), would appear to be in force in Vanuatu as an English statute of general application. In Fiji Islands, legislation to the same effect has been enacted in s9 Evidence Act Cap 41 (Reading 8.11b), and in Tonga in s95 Evidence Act Cap 15 (Reading 8.11c).

Inferred lack of reasonable evidence

Evidence may also be produced which indirectly indicates that there must have been a lack of reasonable care i.e. evidence from which a court can imply or infer a lack of reasonable care. Thus although there are no witnesses who can say that they saw the speed at which a vehicle was travelling, there may be skid marks or damage to the vehicle which indicate that it must have been driven without reasonable care.

Res ipsa loquotur

One situation where an inference of lack of reasonable care may be drawn is where something which is in the control or possession of a person causes harm, but it would not normally cause harm if it were handled with reasonable care. This is sometimes referred to by the Latin phrase res ipsa loquitur*, which means the thing speaks for itself. In such cases the very fact of the harm being caused is sufficient evidence to prove that there must have been a failure to exercise reasonable care. Thus in Scott v London and St Katherine Docks Co (1865) 159 ER 665 (Reading 8.12), six bags of sugar fell from a hoist onto the plaintiff, and the court held that although the defendant did not give evidence so that the court could not know exactly how the accident had occurred, nevertheless it could infer there other must have been a lack of reasonable care, because six bags of sugar do not fall

out of a hoist unless someone has carelessly stowed them on the hoist or carelessly operated the hoist. Erle CJ made a statement that is often quoted:

There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

Thus the Privy Council inferred that there had been a lack of reasonable care in the manufacture of underwear when excessive sulphites were found in them: Grant v Australian Knitting Mills [1936] AC 85; and the House of Lords inferred that there had been a lack of reasonable care by a company in the driving or the maintenance of one of its vehicles that careered out of control down a hill: Henderson v Henry E Jenkins & Sons [1970] AC 282 (Reading 8.13).

This inference is particularly significant where the plaintiff is not able to give evidence as to how exactly the event occurred that caused him harm, and where the defendant is not able to give evidence, or chooses not to do so, with the result that there is no evidence before a court as to how exactly the harm was caused.

As Erle CJ explained in Scott v London and St Katherine Dock Co (Reading 8.12) (above), an inference of lack of reasonable care is only justified " in the absence of explanation by the defendant". So if evidence is given by the defendant as to the cause of the event, then it may displace the inference of lack of reasonable care, and demonstrate that the defendant has taken reasonable care. As Megaw LJ said in Lloyds v West Midlands Gas Board [1971] 1 WLR 749, 755". The res, which previously spoke for itself, may be silenced, or its voice may, on the whole of the evidence, become too weak or muted".

Thus in Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (Reading 8.14), the Privy Council held in proceedings claiming damages for injuries caused when a motor coach veered across a highway and struck a bus coming in the opposite direction that the principle of res ipsa loquitur was displaced by evidence given by the defendant’s driver that the incident had been caused by the bad driving of a car which he had tried suddenly to avoid. Alternatively, evidence given by the plaintiff or the defendant may, demonstrate that there was a lack of reasonable care on the part of the defendant. Thus in Barkway v South Wales Transport Co [1950] 1 All ER 392 (Reading 8.15) a bus, owned by the defendant company, veered across the road and crashed over an embankment after one of the tyres of the bus burst. The defendant gave evidence about its system of tyre inspection and this showed that there had been a lack of reasonable care in the system of inspection which caused the defect resulting in the crash. Accordingly, the

House of Lords held that it was not necessary to rely on an inference of lack of reasonable care arising from the control by the defendant of the bus which would not normally crash over an embankment. As Lord Porter said, 394-5:

The doctrine [of res ipsa loquitur]’s dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.

SUMMARY

At the end of this unit we can now summarise the main points as follows:

1. The courts have required that if a duty to take care is imposed upon a person, that person must exercise the standard of care that a reasonable person would exercise in the particular circumstances.

2. The standard of care is:

objective, not subjective, and does not depend on the standards of a particular person;

not inflexible or rigid, but depends on the circumstances of the case.

3. In determining what is reasonable care in a particular situation, the courts have regard to:

the likelihood of resulting harm; the gravity or seriousness of the harm if it does occur; the difficulty and expense of taking precautionary measures to prevent

the harm; the normal and accepted practices of people in such situations; standards indicated in legislation or subsidiary legislation; the public value and importance of the action being taken which

causes the harm.

4. It is for the person alleging that there has been a failure to take reasonable care which is usually, but not always, the plaintiff to prove that there has been such failure.

5. The person seeking to prove that there has been a failure to exercise reasonable care in civil proceedings must prove this on the balance of probabilities i.e. that it is more likely than not.

6. A person seeking to prove that there has been a failure to exercise reasonable care may rely upon an inference of such failure, if it is shown that something that was in the control of the other person has caused harm which it would not have caused if reasonable care had been exercised by the person in control of that thing (res ipsa loquitur).

This is, however, only an inference that may be available from the facts, but it may be displaced by other evidence to the contrary.