Once a claimant has shown that the defendant owed them a duty of care, it is necessary for them to prove that the defendant was in breach of that duty. Until the last century, negligence cases were tried by jury and the question of negligence was for the jury to decide. During the nineteenth century, judges exercised increasing control over this decision and it was necessary to have a test to give to the jury to determine whether the defendant had been negligent. Negligence cases are now tried by a judge alone. The standard of care expected of a particular defendant is usually set by law, but the question of whether the defendant fell below that standard is one of fact, to be determined by reference to all the circumstances of the case. In cases of negligent driving, for instance, the standard of care is that of the reasonable driver, not a perfect driver or a learner driver. Whether the defendant driver in the case in question has fallen below that standard is a question for the judge to decide based on the facts proved in evidence. The standard set by the court may be affected by policy issues. For example, where the defendant has compulsory insurance, the court may be tempted to set a high standard as this means the claimant will be compensated. Where setting a high standard and imposing liability will affect scarce resources, the court may set a lower standard. This may be one of the factors affecting liability in medical negligence cases. To compensate one claimant may mean closing a ward and depriving a large number of patients of treatment. Fears that the United Kingdom might be developing a ‘compensation culture’ have led to government scrutiny. The view of the UK government, following the conclusions in Better Regulation Task Force in Better Routes to Redress (Cabinet Office Publications, 2004), is that the compensation culture is a myth but that the public’s erroneous belief that it exists results in real and costly burdens. This underlies the rather strange provision of s 1 of the Compensation Act 2006 which, according to the government, simply reiterates the current test for breach of duty in negligence: A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
 (b) discourage persons from undertaking functions in connection with a desirable activity.
Section 1 is intended to deal with the effect of negligence on social activities where people might be inhibited from involving themselves or allowing their land to be used: In considering a claim in negligence, a court may, in determining whether the defendant should have taken particular steps to meet the standard of care (whether by taking precautions or otherwise) have regard to whether a requirement to take those steps might prevent an activity fromtaking place (either at all, to a particular extent, or in a particular way), or might discourage persons from undertaking functions in connection with that activity. It is difficult to see what this will achieve as there is stated to be no change to the common law test for breach of duty and the courts are already alert to this problem as is shown in cases such as Tomlinson v Congleton District Council.  It is up to the claimant to prove that the defendant was negligent and this may be their hardest task. The claimant may not know what happened and ascertaining the facts could be difficult and expensive. In practice, the success or failure of most negligence actions depends on the claimant’s ability to prove negligence.

As a subjective inquiry by the court into each person’s capabilities would be impossible, an objective test was chosen. The standard of conduct to be attained is that of the reasonable man. The classic statement was given by Alderson B in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: 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. Because the test is objective, no account is usually taken of individual disabilities or peculiarities. Nettleship v Weston [1971] 2 QB 691 The plaintiff gave the defendant driving lessons. The defendant had been careful but on her third lesson the car struck a lamp-post and the plaintiff was injured. It was held that the defendant, although a learner driver, would be judged by the standard of the average competent driver: ‘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.’ Denning MR: In all that I have said, I have treated Mrs Weston as the driver who was herself in control of the car. On that footing, she is plainly liable for the damage done to the lamp-post. She is equally liable for the injury done to Mr Nettleship. She owed a duty of care of each. The standard of care is the same in either case. It is measured objectively by the care to be expected of an experienced skilled and careful driver. Mr Nettleship is not defeated by the maxim volenti non fit injuria. He did not agree, expressly or impliedly, to waive any claim for damages owing to her failure to measure up to the standard. But his damages may fall to be reduced owing to his failure to correct her error quick enough. Although the judge dismissed the claim, he did (in case he was wrong) apportion responsibility. He thought it would be just and equitable to regard them equally to blame. I would accept this apportionment. The defendant in the above case had failed to reach the standard set by the objective test and was found liable. This raises questions of the nature of ‘fault’ and whether it is a moral question or a loss distributing mechanism. The objective standard would seem to indicate that fault is more concerned with loss distribution but it is arguable that an objective standard is justifiable on moral grounds as it concerns responsibility. The following two cases deal with the difficult question of liability when a person becomes ill while driving and causes an accident. Roberts v Ramsbottom [1980] 1 WLR 823 The defendant drove his car after he had unknowingly suffered a cerebral haemorrhage and was unfit to drive. He collided with a stationary van and then with a parked vehicle. It was held that he had continued to drive after he had suffered a seizure which affected his reactions and was negligent in doing so. The court stated that a person might escape liability if his actions at the relevant time were wholly beyond his control, so as to amount to automatism. The fact that his consciousness was impaired due to brain malfunction did not amount to automatism. The reasonably prudent person would have stopped driving in such circumstances. The automatism test imported from criminal law was later disapproved by the Court of Appeal. Mansfield v Weetabix Ltd [1998] 1 WLR 1263 The defendant was driving a lorry when he crashed into the plaintiffs’ shop causing extensive damage. The defendant, unknowingly, was suffering from a condition which caused a hypoglycaemic state in which the brain was starved of glucose and was unable to function properly. The judge at first instance concluded that it was highly unlikely that the second defendant had completely lost consciousness before the accident occurred; his ability to drive properly was impaired because of hypoglycaemia; he was not conscious that his ability was impaired; and he would have stopped driving if he had been so conscious. The judge found the defendants negligent because the defendant had not totally lost control of the vehicle. On appeal, it was held that a driver would not be liable in negligence if a sudden disabling event affected his ability to drive, and there was no reason in principle why a driver should not escape liability where the disabling event was not sudden but gradual, provided that he was unaware of it, as distinct from a driver who knew, or ought to have known, that he was subject to a condition rendering him unfit to drive. The relevant standard of care was that which was to be expected of a reasonably competent driver unaware that he was or might be suffering from a condition that impaired his ability to drive. To imply an objective standard that did not take account of his condition would be to impose strict liability. Accordingly, the appeal would be allowed. The court observed that consideration of criminal cases could only introduce confusion, as there to escape conviction a defendant had to show that when driving he was in a state of automatism, which was not the test in a civil case. The defendant in this case was found to have been unable to avoid the accident. This case poses difficulties for the law of negligence. The objective standard of care was set aside for someone who could not fulfil it, as otherwise strict liability would have been imposed. However, that element of strict liability is generally accepted in the law of negligence and is inherent in the objective standard. There are two circumstances where subjective factors may be taken into account. In the case of children, the standard is still an objective one, but it is not the standard of the ordinarily prudent and reasonable adult but that of an ordinarily prudent and reasonable child of the same age. Mullin v Richards [1998] 1 All ER 920 M and R, two 15-year-old schoolgirls, were fencing with plastic rulers when one of the rulers snapped and a piece of plastic entered M’s eye, causing her to lose the sight in that eye. The action failed as there was insufficient evidence to prove that it was foreseeable to a normal 15-year-old. There was no evidence as to the propensity of such rulers to break and the game had not been banned in the school. (McHale v Watson [1966] ALR 513 applied.) It is perhaps worth noting that a child is unlikely to be insured and this may be a factor behind the variation of the objective standard. Second, where a person acts in an emergency, this will be taken into account when assessing the standard of behaviour to be expected. (Jones v Boyce (1816) 171 ER 540.) The test is that of the reasonable man placed in the defendant’s position. Glasgow Corp v Muir [1943] AC 448 The appellants allowed a church picnic party to use their tea room on a wet day. Members of the party had to carry the tea-urn through a passage where children were buying ice creams. For an unexplained reason, the urn was dropped and children were scalded by the tea. The House of Lords held that, judged by the standards of the reasonable man, there was no liability: ‘Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation.’ There was no reason why the defendants would anticipate the event happening as a result of granting permission. The urn was in the care of responsible people who took due care for the safety of the children.
Lord Macmillan:
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 is presumed to be free both from overapprehension and from over-confidence. But, there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation and what accordingly the party sought to be made liable ought to have foreseen. Here there is room for diversity of view, as indeed is well illustrated in the present case. What to one judge may seem far-fetched may seem to another both natural and probable. Roe v Minister of Health [1954] 2 QB 66 The plaintiff was paralysed after receiving an injection in hospital. Phenol had leaked into the syringe and caused the paralysis. At this time it was not known that phenol could get into the syringe through invisible cracks. The defendants were not negligent as, judged by the standard of the reasonable person at the time of the accident, they could not have avoided the accident. The court will not condemn a defendant with ‘the benefit of hindsight’.

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