W3 – NEGLIGENCE: BREACH OF DUTY
READING
* McBride and Bagshaw, pp 228-245, 252-254
* Nettleship v Weston [1971] 2 QB 691 (CA)
Bolton v Stone [1951] AC 850 (HL) (Batter case, landed In someone's backyard)
Paris v Stepney Borough Council [1951] AC 367 (HL) (Sensitive garage worker who
whacked his eye)
Latimer v AEC Ltd [1953] AC 643 (HL) (Oil spillage In factory case; sawdust corridors)
Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46
* Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 (Diabetic
pregnant patient)
Compensation Act 2006, s 1
QUESTIONS
1. What does it mean to say that the standard of care is ‘objective’? Why does the
law adopt this objective approach? Is it fair? Is the standard of care always
and in all respects objective?
IN AN ACTION FOR NEGLIGENCE, THE REASONABLE MAN TEST ASKS WHAT THE
“REASONABLE PERSON OF ORDINARY PRUDENCE” WOULD HAVE DONE IN THE
DEFENDANT'S SITUATION. BECAUSE THIS IS AN OBJECTIVE TEST, WE DO NOT CARE
WHAT WAS GOING THROUGH THE DEFENDANT'S MIND WHEN HE COMMITTED HIS ACT
OR OMISSION.
WE CAN'T HAVE DIFFERENT STANDARDS FOR EVERYONE, WE HAVE TO AIM FOR THE
AVERAGE. IF D CANNOT MEET THE STANDARD THEN THAT IS D'S PROBLEM. THIS
AVOIDS CONFUSION AND KEEPS THE LAW TO A FLAT STANDARD, AVOIDING TOO MANY
EXCEPTIONS ETC. IT MAY LEAD TO A SLIPPERY SLOPE.
IN TERMS OF FAIRNESS… WELL, WHAT IF D IS DISABLED OR INCAPACITATED OR A
LEARNER?
WHAT IS TRUE IS THAT THE STANDARD CANNOT BE SENSITIVE TO EVERY PERSON'S
EVERY PARTICULAR FEATURE.
WHAT IS FALSE IS THAT SOMETIMES COURTS DO TAKE ACCOUNT OF DIMINISHED
CAPABILITIES. CHILDREN ARE ALSO EXEMPT.
THE CORRECT VIEW WOULD BE THAT THE SHORTFALL IN D'S CAPABILITIES MAY
MATTER IF D HAD NO OPPORTUNITY TO DISCOVER THAT SHORTFALL, E.G. NO REASON
OF KNOWING THE CONDITION OR A LACK OF SKILL.
NETTLESHIP V WESTON: LEARNER DRIVER DEFENDANT TOOK LESSONS FROM
FRIEND. ON ONE OF THE LESSONS MRS WESTON TURNED A BEND, MR NETTLESHIP
TOLD HER TO STRAIGHTEN THE WHEEL BUT MRS WESTON PANICKED AND FAILED TO
STRAIGHTEN THE WHEEL. SHE APPROACHED THE PAVEMENT AND MR NETTLESHIP
GRABBED THE HANDBRAKE AND TRIED TO STRAIGHTEN THE WHEEL BUT IT WAS TOO
LATE. SHE MOUNTED THE PAVEMENT AND HIT A LAMP POST. MR NETTLESHIP
FRACTURED HIS KNEE AND SUED FOR NEGLIGENCE. THE DEFENDANT ARGUED THAT
THE STANDARD OF CARE SHOULD BE LOWERED FOR LEARNER DRIVERS AND SHE ALSO
RAISED THE DEFENCE OF VOLENTI NON FIT INJURIA IN THAT IN AGREEING TO GET IN
THE CAR KNOWING SHE WAS A LEARNER, HE HAD VOLUNTARILY ACCEPTED THE RISK.
2. What factors do the courts weigh up when considering whether a defendant
breached a duty of care?
READING
* McBride and Bagshaw, pp 228-245, 252-254
* Nettleship v Weston [1971] 2 QB 691 (CA)
Bolton v Stone [1951] AC 850 (HL) (Batter case, landed In someone's backyard)
Paris v Stepney Borough Council [1951] AC 367 (HL) (Sensitive garage worker who
whacked his eye)
Latimer v AEC Ltd [1953] AC 643 (HL) (Oil spillage In factory case; sawdust corridors)
Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46
* Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 (Diabetic
pregnant patient)
Compensation Act 2006, s 1
QUESTIONS
1. What does it mean to say that the standard of care is ‘objective’? Why does the
law adopt this objective approach? Is it fair? Is the standard of care always
and in all respects objective?
IN AN ACTION FOR NEGLIGENCE, THE REASONABLE MAN TEST ASKS WHAT THE
“REASONABLE PERSON OF ORDINARY PRUDENCE” WOULD HAVE DONE IN THE
DEFENDANT'S SITUATION. BECAUSE THIS IS AN OBJECTIVE TEST, WE DO NOT CARE
WHAT WAS GOING THROUGH THE DEFENDANT'S MIND WHEN HE COMMITTED HIS ACT
OR OMISSION.
WE CAN'T HAVE DIFFERENT STANDARDS FOR EVERYONE, WE HAVE TO AIM FOR THE
AVERAGE. IF D CANNOT MEET THE STANDARD THEN THAT IS D'S PROBLEM. THIS
AVOIDS CONFUSION AND KEEPS THE LAW TO A FLAT STANDARD, AVOIDING TOO MANY
EXCEPTIONS ETC. IT MAY LEAD TO A SLIPPERY SLOPE.
IN TERMS OF FAIRNESS… WELL, WHAT IF D IS DISABLED OR INCAPACITATED OR A
LEARNER?
WHAT IS TRUE IS THAT THE STANDARD CANNOT BE SENSITIVE TO EVERY PERSON'S
EVERY PARTICULAR FEATURE.
WHAT IS FALSE IS THAT SOMETIMES COURTS DO TAKE ACCOUNT OF DIMINISHED
CAPABILITIES. CHILDREN ARE ALSO EXEMPT.
THE CORRECT VIEW WOULD BE THAT THE SHORTFALL IN D'S CAPABILITIES MAY
MATTER IF D HAD NO OPPORTUNITY TO DISCOVER THAT SHORTFALL, E.G. NO REASON
OF KNOWING THE CONDITION OR A LACK OF SKILL.
NETTLESHIP V WESTON: LEARNER DRIVER DEFENDANT TOOK LESSONS FROM
FRIEND. ON ONE OF THE LESSONS MRS WESTON TURNED A BEND, MR NETTLESHIP
TOLD HER TO STRAIGHTEN THE WHEEL BUT MRS WESTON PANICKED AND FAILED TO
STRAIGHTEN THE WHEEL. SHE APPROACHED THE PAVEMENT AND MR NETTLESHIP
GRABBED THE HANDBRAKE AND TRIED TO STRAIGHTEN THE WHEEL BUT IT WAS TOO
LATE. SHE MOUNTED THE PAVEMENT AND HIT A LAMP POST. MR NETTLESHIP
FRACTURED HIS KNEE AND SUED FOR NEGLIGENCE. THE DEFENDANT ARGUED THAT
THE STANDARD OF CARE SHOULD BE LOWERED FOR LEARNER DRIVERS AND SHE ALSO
RAISED THE DEFENCE OF VOLENTI NON FIT INJURIA IN THAT IN AGREEING TO GET IN
THE CAR KNOWING SHE WAS A LEARNER, HE HAD VOLUNTARILY ACCEPTED THE RISK.
2. What factors do the courts weigh up when considering whether a defendant
breached a duty of care?
