STANDARD OF CARE/ BREACH OF DUTY
STANDARD OF CARE:
The law of negligence imposes a reasonable standard of care on D, and not a standard of
perfection – objective standard. Fixing the requisite reasonable standard of care in any given
case is a question of law.
Donoghue v Stevenson: ‘[y]ou must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour.’
Bolton v Stone: ‘[t]he standard of care in the law of negligence is the standard of an
ordinarily careful man.’ – or an ordinarily careful cricket club in that case.
What the law of negligence does not impose on D is a requirement that he meet a standard
of perfection, i.e. a level of conduct, which is so unattainably high that breach is inevitable
because even reasonable conduct could not satisfy such a standard. The reality is that
mistakes, errors in judgment, acts and omissions falling short of perfection, commonly do
occur in any endeavour of life – but they do not represent breach, and negligence unless
they fall below what would be expected of a reasonable person in D’s position.
Reasonableness is a question of law, not circumstance/facts:
o Barrie v Cardiff- C, tripped over in playground over 15mm protruding concrete. SoC
owed to have a reasonable safe playground for ordinary children between 4-7. The
standard was not elevated because of C’s brittle bone disease. D met SoC.
First instance courts must resist setting the standard too high.
An unattainable standard of care i.e. one which D cannot achieve because of D’s particular
characteristics or circumstances- is never the less lawful. this is for policy reasons
The omission to do something which a reasonable man ... would do or the doing of
something that a reasonable man would not do’ Blyth v Birmingham Waterworks (1856)
Breach of the duty of care is doing something which a reasonable person in all the
circumstance would not have done OR failing to do something which a reasonable
person in the same circumstances would have done
o Put another way, what would a reasonable person have done differently so
as to avoid the risk of hard occurring to C?
If the answer to that question is “Nothing” then D will have reached
the standard of care required of her and she will not be in breach of
her duty of care to C
No such thing as a team SoC:
Wilsher v Essex- C born premature. Within 36hrs C saturated with oxygen, due to mistakes
by 2 members of the team. Breach proven. Just because the unit was very specialised did
not mean that everyone working there was. Also, C only survived the birth because of the
high standard of C through his 6-month stay did not preclude finding a breach, regarding the
first 36 hours. (causation failed)
OBJECTIVE (Primarily)
Nettleship v wetson (inexperience)- learner driver case. Facts- mrs Weston was a learner driver.
Braked too sharply, Mr. Nettleship suffered damage to knee- decided to sue for negligence.
- Can a learner driver ever be competent whilst learning? No
- Must drive the same as an experienced driver.
- ‘Balancing risk’- where should the risk lie.
o ‘The learner driver may be doing his best, but his incompetent best is not good enough.
He must drive in as good a manner as a driver of skill, experience and care, who is sound
in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and
is free from any infirmity’ per Lord Denning
STANDARD OF CARE:
The law of negligence imposes a reasonable standard of care on D, and not a standard of
perfection – objective standard. Fixing the requisite reasonable standard of care in any given
case is a question of law.
Donoghue v Stevenson: ‘[y]ou must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour.’
Bolton v Stone: ‘[t]he standard of care in the law of negligence is the standard of an
ordinarily careful man.’ – or an ordinarily careful cricket club in that case.
What the law of negligence does not impose on D is a requirement that he meet a standard
of perfection, i.e. a level of conduct, which is so unattainably high that breach is inevitable
because even reasonable conduct could not satisfy such a standard. The reality is that
mistakes, errors in judgment, acts and omissions falling short of perfection, commonly do
occur in any endeavour of life – but they do not represent breach, and negligence unless
they fall below what would be expected of a reasonable person in D’s position.
Reasonableness is a question of law, not circumstance/facts:
o Barrie v Cardiff- C, tripped over in playground over 15mm protruding concrete. SoC
owed to have a reasonable safe playground for ordinary children between 4-7. The
standard was not elevated because of C’s brittle bone disease. D met SoC.
First instance courts must resist setting the standard too high.
An unattainable standard of care i.e. one which D cannot achieve because of D’s particular
characteristics or circumstances- is never the less lawful. this is for policy reasons
The omission to do something which a reasonable man ... would do or the doing of
something that a reasonable man would not do’ Blyth v Birmingham Waterworks (1856)
Breach of the duty of care is doing something which a reasonable person in all the
circumstance would not have done OR failing to do something which a reasonable
person in the same circumstances would have done
o Put another way, what would a reasonable person have done differently so
as to avoid the risk of hard occurring to C?
If the answer to that question is “Nothing” then D will have reached
the standard of care required of her and she will not be in breach of
her duty of care to C
No such thing as a team SoC:
Wilsher v Essex- C born premature. Within 36hrs C saturated with oxygen, due to mistakes
by 2 members of the team. Breach proven. Just because the unit was very specialised did
not mean that everyone working there was. Also, C only survived the birth because of the
high standard of C through his 6-month stay did not preclude finding a breach, regarding the
first 36 hours. (causation failed)
OBJECTIVE (Primarily)
Nettleship v wetson (inexperience)- learner driver case. Facts- mrs Weston was a learner driver.
Braked too sharply, Mr. Nettleship suffered damage to knee- decided to sue for negligence.
- Can a learner driver ever be competent whilst learning? No
- Must drive the same as an experienced driver.
- ‘Balancing risk’- where should the risk lie.
o ‘The learner driver may be doing his best, but his incompetent best is not good enough.
He must drive in as good a manner as a driver of skill, experience and care, who is sound
in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and
is free from any infirmity’ per Lord Denning
