Chapter 3 Podcast Transcript

To conclude, establishing that the defendant owed the claimant a duty of care is the first step in formulating a negligence claim. Next, the claimant must prove that the defendant has breached that duty, that is, he has been negligent. This is a fact-based inquiry. Negligence in this sense is determined by answering two questions:

1) How ought the defendant to have behaved in the circumstances; that is: standard of care? This has been determined by a combination of statute and common law and is described as a matter of law.

2) Did the defendant’s behaviour fall below the desired standard, that is: breach? This depends on assessing what actually happened in the case and is described as a matter of fact.

We’ve seen that the general standard of care in negligence is objective. The conduct required is often described as that of the reasonable man. The reason for this lies in the primary objective of the action in negligence. It is to compensate the injured party for the harm which he or she has suffered. The concern is not to analyse the defendant as an individual, which in any event could be extremely difficult.

According to Blyth v Birmingham Waterworks in 1856:

‘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’.

The reasonable man is not foolhardy, but nor is he excessively cautious. He is expected to learn from experience and is not excused by being slow-witted or having a poor memory. On the other hand, the law recognizes that everyone makes mistakes, otherwise we could be looking at strict liability (which we are not!)

There will, however be a number of exceptions to the objective standard, which you will need to learn: children, those holding themselves out as having special skills, and professionals - see the key case of Wilsher v Essex AHA in 1988.

Having arrived at a standard of care, it must now be established whether in the circumstances of the case, the defendant reached that standard or not. This is described as a balancing exercise in which the court weighs the cost of running the risk against the cost of avoiding the risk. Among the key cases here are and Bolton v Stone, and Wagon Mound (No 2); also Bolam v Friern Hospital Mangement Committee, in relation to professional liability.

There is an element of statutory influence here, in which the Compensation Act 2006, section 1, encourages courts to take into account the potential wider social impact of liability in negligence, in an attempt to address concerns about the so-called ‘compensation culture’.