Breach of Duty
It is to be appreciated that, in tort, it has long been recognised that it is not possible for there to be liability in negligence without the claimant in any give case first looking to establish that they were owed a duty of care by the defendant and there had been a consequent breach of that same duty. Therefore, with this in mind, it is to be appreciated that the defendant in any given case is in breach if their conduct has fallen short of the standard they were expected to meet either through the recognition of - (a) a general standard of care; (b) a 'special standard'; or (c) the conduct expected of a reasonable person.
(i) General Standard of Care
It is to be appreciated that any defendant needs to generally look to meet the standard of what is considered to be aspirational for a 'reasonable man' as was recognised by Baron Alderson in the decision in Blyth v. Birmingham Waterworks (1856) 11 Exch 781. Therefore, with this in mind, it has been held that a 'reasonable person' has had various definitions given to them, illustrated by decisions including Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205 and McFarlane v. Tayside Health Board [2000] SC (HL) 1. Consequently, it is to be appreciated that this principle fundamentally revolves around the idea that the standard of objectivity that can ever be expected is based on what could be expected of a 'reasonable person' in the circumstances because it is impossible to expect perfection - only reasonable prudence and care.
(ii) Special Standard
Anyone who holds themselves out as having a certain skill or expertise cannot be held to the same standard that could be expected of an ordinary man, in keeping with Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, so that it becomes that of what can be expected of a similar 'reasonable professional' car mechanic or doctor. But novices are not given any 'special' dispensation just because they lack experience, supported by decisions including Nettleship v. Weston [1971] 3 All ER 581, Wilsher v. Essex Area Health Authority [1986] 3 All ER 801, and Wells v. Cooper [1958] 2 All ER 527, so that the standard of care expected is not lowered just because of this. However, it is also to be appreciated that the same is not true of children in such cases as they arise because some form of dispensation is expected to allow for their age so that they must only meet what is expected of a reasonable child of the same age in keeping with decisions including Gough v. Thorne [1966] 3 All ER 398 and Mullin v. Richards [1998] 1 All ER 920.
(iii) The Conduct Expected of a 'Reasonable Person'
In order to be able to effectively determine what can be expected of a 'reasonable person' in a given set of circumstances, it is to be appreciated that the following factors need to be given due consideration by the courts in the circumstances -
What did the defendant know?
By way of illustration, in Roe v. Minister of Health [1954] 2 All ER 131 it was reognised that a defendant will only be liable if a 'reasonable person' would have foreseen the loss or damage - although the 'eggshell skull' rule recognises the idea that the victim of harm should be taken as they are found so that if they have a particular unknown defect that makes them more susceptible to injury then the person who inflicts the injury can still be held liable, on the basis of the decision in Smith v. Leech Brain & Co. (1962) 2 QB 405.
What was the degree of risk?
The greater the risk, the greater the precautions needed according to decisions including Bolton v. Stone [1951] AC 850 and Miller v. Jackson [1977] QB 966.
How practical were these precautions in the circumstances?
By way of illustration, in Wilson v. Governor of Sacred Heart Roman Catholic Primary School [1997] EWCA Civ 2644 a primary school was deemed not negligent for not employing someone to supervise the playground after the close of school hours so that the test, in such cases, is effectively about looking to strike a balance of reasonableness of precautions against foreseeable injury.
What is the social importance of the defendant's activity?
When any defendant's actions are considered to serve a socially useful purpose then they may then have been considered justified in looking to taking greater risks supported by the decision in Watt v. Hertfordshire County Council [1954] 2 All ER 368 along with the remit of section 1 of the Compensation Act 2006.
Is there any common practice in the area under consideration?
Where a defendant in any given circumstances is found to have complied with what is considered to be common practice in their activity, they will usually be considered to have met a reasonable standard, unless the court considers the practice negligent, illustrated by the decision in Paris v. Stepney Borough Council [1951] 1 All ER 42.
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