Care must be taken in respect of a risk that is
reasonably foreseeable. Nearly all human actions involve some risk of damage,
but not every risky act will result in liability.
Bolton
v Stone [1951] 1 All ER 1078
The plaintiff was
injured on the highway by a cricket ball hit from the defendants’ ground. The
ball had been hit 100 yards and cleared a 17-foot fence which was 78 yards from
the batsman. The evidence showed that the ball had only been hit out of the
ground six times in the previous 30 years. The defendants were found not to
have been negligent, as the risk was so small that the reasonable man would
have been justified in disregarding it. This case was also argued in nuisance,
but counsel conceded that if he could not succeed in negligence, he could not
succeed in nuisance. The key question here was the degree of probability rather
than the costs of prevention but in a later case (Shine v London Borough of
Tower Hamlets [2006] All ER (D) 79 ( Jun)) it was interpreted as authority for
the proposition that there has to be a balance between the likely severity of
the accident and the cost of putting it right.
Hilder
v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1434
The plaintiff’s husband was
riding his motor cycle along a road beside a piece of open land occupied by the
defendants. Children were permitted to play football on the land. A ball was
kicked on to the road causing a fatal accident. As there was a strong
possibility of injury to road users, the defendants were negligent, as they had
taken no additional precautions to ensure the safety of road users. It should
be remembered that the test is reasonable care in all the circumstances of the
case. The claimant may have characteristics which render the likelihood of harm
greater and therefore increase the risk.
Haley
v London Electricity Board [1965] AC 778
The defendants
left a hammer on the pavement to warn people of excavations. The plaintiff, who
was blind, tripped over the hammer and was injured. It was held that although
the warning was adequate for sighted persons, it was inadequate for a blind
person. The number of blind people was sufficiently large to make them a class
which the defendants ought reasonably to have had in contemplation. The cost of
prevention in this case was low. Lord Morton: [The Board’s] duty is to take
reasonable care not to act in a way likely to endanger other persons who may
reasonably be expected to walk along the pavement. That duty is owed to blind
persons if the operators foresee or ought to have foreseen that blind persons
may walk along the pavement and is in no way different from the duty owed to
persons with sight, though the carrying out of the duty may involve extra
precautions in the case of blind pedestrians. I think that everyone living in
Greater London must have seen blind persons walking slowly along the pavement
and waving a white stick in front of them so as to touch any distraction which
may be in their way and I think that the respondent’s workmen ought to have
foreseen that a blind person might well come along the pavement in question.
The courts also take the view that dealings with
children demand a high degree of care. In Yachuk v Oliver Blais [1949] AC 386
the defendants sold petrol to a nine-year-old. The plaintiff was burned when
the child set fire to the petrol. The defendants were held liable for selling
the petrol, although the child had said he needed it for his mother’s car.
The
magnitude of harm likely
The court will take into account not only the risk of
any damage to the claimant but also the extent of the damage that is risked.
Paris v Stepney Borough Council [1951] AC 367 The plaintiff, who had one eye,
was employed as a mechanic in the defendants’ garage. Part of his job involved
welding. It was not normal to supply goggles to men involved in such work. A
piece of metal flew into the plaintiff’s eye with the result that he became
completely blind. The defendants were held liable, although they would not have
been liable to a person with normal sight. The greater risk to the plaintiff
meant that greater precautions than normal had to be taken. Withers v Perry
Chain Co Ltd [1961] 1 WLR 1314 The plaintiff was prone to dermatitis and was
given the most grease-free job available. Despite this, she contracted
dermatitis. The defendant employers were held not liable as they had done all
that was reasonable, short of refusing to employ her at all.
The
utility of the object to be achieved
The court may be called on to assess the social utility
of the defendant’s conduct in determining whether he was negligent. Asquith J
stated in Daborn v Bath Tramways [1946] 2 All ER 333: If all the trains in this
country were restricted to a speed of five miles per hour, there would be fewer
accidents, but our national life would be intolerably slowed down. The purpose
to be served, if sufficiently important, justifies the assumption of abnormal
risk.
Watt
v Hertfordshire County Council [1954] 1 WLR 835
The plaintiff fireman was on duty when an emergency call
was received. A woman had been trapped under a car and lifting equipment was
required. A heavy jack was loaded on to a lorry which was not equipped to
secure it. On the way to the accident the jack moved and injured the plaintiff,
who sued his employers. The action failed as, in the circumstances, the risk
involved was not so great as to prohibit an attempt to save life.
The value of saving life is surely unarguable, but was
it fair on the fireman that he should recover nothing for injuries received in
the course of his employment? The Court of Appeal has expressed disquiet that
members of the rescue services may go uncompensated for injuries received at
work. (King v Sussex Ambulance NHS Trust [2002] ICR 1413.) However, as utility
is a factor going to negligence, it is difficult to see how such people could
be compensated by the tort system unless a form of strict liability was
introduced. Other values may not be so easy to assess. What, for example, is the
value of playing cricket? Was this a factor which influenced the decision in
Bolton v Stone? It would clearly have made a difference if the plaintiff’s
injury had been caused by an unlawful activity. The following case is taken
from the area of occupier’s liability of defective premises and as such was
decided under the relevant statutes, the Occupier’s Liability Act 1957 and the
Occupier’s Liability Act 1984. It does, however, illustrate the issues involved
in a breach of duty in a particular area which has generated a considerable
amount of litigation, that of an occupier of land for persons injured during
leisure pursuits on the land.
Tomlinson
v Congleton District Council [2003] 3 All ER 1122
The defendants owned, occupied and managed a public
park. In the park was a lake formed from a disused sand extraction pit. The
lake had sandy beaches and was a popular recreational venue where yachting,
sub-aqua diving and other regulated activities were permitted, but swimming was
not. Notices reading ‘Dangerous water: no swimming’ were posted but they had
little or no effect. The unauthorised use of the lake and the increasing
possibility of an accident was of concern to the defendants. A plan to
landscape the shores and plant over the beaches from which people swam had been
approved, but work had begun only shortly before 6 May 1995. On that date the
claimant went to the lake. He ran into the water and dived, striking his head
on the sandy bottom with sufficient force to cause him an injury which resulted
in paralysis from the neck downward. He brought proceedings for damages
claiming that the defendants, as occupiers, owed him the common duty of care
set out in s 2(2) of the Occupiers’ Liability Act 1957, which was a duty to
take such care as in all the circumstances was reasonable to see that a visitor
would be reasonably safe in using the premises for the purposes for which he
was permitted to be there. At trial it was conceded that he had seen and
ignored the warning signs, so that when he entered the water he had ceased to
be at the park for purposes for which he had been invited and permitted by the
defendants to be there, and had accordingly ceased to be a visitor and had
become a trespasser. As such he was owed a lesser duty of care under the
Occupiers’ Liability Act 1984.
Lord
Hoffmann:
My Lords, it will in the circumstances be convenient to
consider first the question of what the position would have been if Mr
Tomlinson had been a lawful visitor owed a duty under s 2(2) of the 1957 Act. Assume,
therefore, that there had been no prohibition on swimming. What was the risk of
serious injury? To some extent this depends upon what one regards as the
relevant risk. As I have mentioned, the judge thought it was the risk of injury
through diving while the Court of Appeal thought it was any kind of injury
which could happen to people in the water. Although, as I have said, I am
inclined to agree with the judge, I do not want to put the basis of my decision
too narrowly. So I accept that we are concerned with the steps, if any, which
should have been taken to prevent any kind of water accident. According to the
Royal Society for the Prevention of Accidents, about 450 people drown while
swimming in the United Kingdom every year (see Darby v National Trust [2001]
PIQR P372 at 374). About 25–35 break their necks diving and no doubt others
sustain less serious injuries. So there is obviously some degree of risk in
swimming and diving, as there is in climbing, cycling, fell walking and many
other such activities. I turn then to the cost of taking preventative measures.
Ward LJ described it [£5,000] as ‘not excessive’. Perhaps it was not, although
the outlay has to be seen in the context of the other items (rated ‘essential’
and ‘highly desirable’) in the borough council budget which had taken
precedence over the destruction of the beaches for the previous two years. I do
not, however, regard the financial cost as a significant item in the balancing
exercise which the court has to undertake. There are two other related
considerations which are far more important. The first is the social value of
the activities which would have to be prohibited in order to reduce or
eliminate the risk from swimming. And the second is the question of whether the
council should be entitled to allow people of full capacity to decide for
themselves whether to take the risk. The Court of Appeal made no reference at
all to the social value of the activities which were to be prohibited. The
majority of people who went to the beaches to sunbathe, paddle and play with
their children were enjoying themselves in a way which gave them pleasure and
caused no risk to themselves or anyone else. This must be something to be taken
into account in deciding whether it was reasonable to expect the council to
destroy the beaches. I have the impression that the Court of Appeal felt able
to brush these matters aside because the council had already decided to do the
work. But they were held liable for having failed to do so before Mr
Tomlinson’s accident and the question is therefore whether they were under a
legal duty to do so. Ward LJ placed much emphasis upon the fact that the
council had decided to destroy the beaches and that its officers thought that
this was necessary to avoid being held liable for an accident to a swimmer. But
the fact that the council’s safety officers thought that the work was necessary
does not show that there was a legal duty to do it. . . . THE BALANCE OF RISK,
GRAVITY OF INJURY, COST AND SOCIAL VALUE My Lords, the majority of the Court of
Appeal appear to have proceeded on the basis that if there was a foreseeable
risk of serious injury, the council was under a duty to do what was necessary
to prevent it. But this in my opinion is an oversimplification. Even in the
case of the duty owed to a lawful visitor under s 2(2) of the 1957 Act and even
if the risk had been attributable to the state of the premises rather than the
acts of Mr Tomlinson, the question of what amounts to ‘such care as in all the
circumstances of the case is reasonable’ depends upon assessing, as in the case
of common law negligence, not only the likelihood that someone may be injured
and the seriousness of the injury which may occur, but also the social value of
the activity which gives rise to the risk and the cost of preventative
measures. These factors have to be balanced against each other. . . . in Jolley
v Sutton London BC [2000] 3 All ER 409, [2000] 1 WLR 1082 there was no social
value or cost saving to the council in creating a risk by leaving a derelict
boat lying about. It was something which they ought to have removed whether it
created a risk of injury or not. So they were held liable for an injury which,
though foreseeable, was not particularly likely. On the other hand, in The
Wagon Mound (No 2) [1966] 2 All ER 709 at 718, [1967] 1 AC 617 at 642 Lord Reid
drew a contrast with Bolton v Stone [1951] 1 All ER 1078, [1951] AC 850 in
which the House of Lords held that it was not negligent for a cricket club to
do nothing about the risk of someone being injured by a cricket ball hit out of
the ground. The difference was that the cricket club were carrying on a lawful
and socially useful activity and would have had to stop playing cricket at that
ground. This is the kind of balance which has to be struck even in a situation
in which it is clearly fair, just and reasonable that there should in principle
be a duty of care or in which Parliament, as in the 1957 Act, has decreed that
there should be. And it may lead to the conclusion that even though injury is
foreseeable, as it was in Bolton v Stone, it is still in all the circumstances
reasonable to do nothing about it.
This is the area that the government was concerned with
when it introduced the Compensation Act 2006. However, it would appear from
this decision and the comments of Lord Hoffmann that the statutory intervention
will add nothing to the existing common law. The case is a warning that it will
not always be the ‘best insurer’ who succeeds. The case illustrates that
claimants retain personal responsibility for their own safety despite the
defendant in this case having a deeper pocket.
The
practicability of prevention
Once the court
has identified a risk as reasonably foreseeable, the question is whether the
defendants should have taken precautions against that risk. If the cost of
eliminating the risk is out of proportion to the extent of the risk, then the
defendant will not be obliged to take preventative measures. (See Bolton v
Stone.)
Latimer
v AEC Ltd [1953] AC 643
After a factory was flooded, the owner did all that he
could to eliminate the effects of the flooding by using sawdust on the floors.
Some areas of floor remained uncovered. The plaintiff fell on one of these
areas and was injured. He sued his employer in negligence, alleging that the
factory ought to have been closed. It was held that it was not necessary to
take such a precaution as it was out of proportion to the risk involved.
It is not
normally necessary to eliminate the risk altogether, as this would amount to
insurance against the risk.
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