Chapter 8 Answers to end-of-chapter questions

Breach of duty: the standard of care

1. In Bolton v Stone the cricket club were not held liable. What was the role of reasonable foreseeability? Do you agree with the outcome of the case?

Although it was reasonably foreseeable that someone could be hit by a ball being hit out of the cricket ground, this alone is not enough to establish that the defendant had failed to take reasonable care. A defendant is not obligated to eliminate all risks. Though the judges in Bolton held that the harm was foreseeable, they nevertheless thought it was unlikely and that that it was not have been reasonable to require the defendants to take further steps to reduce this risk given the costs it would involve. In general terms, the more likely the harm and the more serious harm would be, the more the defendant is expected to do to reduce the risk.

2. What was the reasoning behind Nettleship v Weston? Is it a fair decision? Fair (or unfair) to whom?

There are a number of things going on in Nettleship (discussed in section 8.3). One issue is whether it is fair to allow a defendant to rely on their own incapacities or failings to escape liability in tort. After all, though they may seem less blameworthy in such circumstances, it does not automatically follow that they should not bear the cost of the accidents or harms they cause. While we may not feel particularly sorry for the claimant in Nettleship (after all he knew what he was letting himself in for) what about the 'innocent' road user who is hit by a learner driver (albeit one driving at the standard expected of a learner) and who would be left uncompensated?

A further feature of this case, as articulated in the judgment of Lord Denning MR, is the role played by the presence of insurance in tort law claims. The defendant (as theoretically are all road users) was insured against the costs the accident. With this in mind,  the argument that it would be unfair to make her pay for an accident she was, perhaps, (due to her own inexperience) unable to avoid it, has less bite here.  However, the extent to which the courts should take such factors into account is controversial. The extent to which you think the decision in Nettleship is fair or unfair (and to whom?) will largely depend on what you think tort law is for – have a look again at the purposes of tort law outlined in section 1.3.

3. 'It is better to control liability by adjusting the standard of care than by restricting the circumstances in which a duty of care arises'. Discuss.

This is an example of the type exam question in this area. It requires you to consider both duty and breach (standard of care) – be careful, don't assume that just because a question is in a particular chapter, tutorial/seminar or place on the exam paper that it is exclusively a 'breach' or 'duty' question. Many questions are written in order to get you to explore the relationship between various concepts.

The starting point here is that the law doesn't want to hold people liable for every foreseeable harm resulting from their conduct. The question then is how we explain the denial of liability in such cases. The issue here is whether we would be better denying these claims at the breach stage rather than at the earlier duty stage (as in the case of many cases of involving the negligence infliction of pure psychiatric harm or pure economic loss). That is, rather than simply saying no duty of care is owed the defendant would owe the claimant a duty of care, but the standard of care would vary according to whether we think there should be liability. The best example of this happening is in medical negligence cases. In these cases there is no problem with establishing that medical professionals owe their patients a duty of care. Rather, the courts have tailored a specific test (the Bolam test – as interpreted in Bolitho and Montgomery) which performs a major role in determining whether there will be liability.

Why might we think these things are better dealt with at breach? One suggestion here is that it essentially looks better to say that there is a duty of care. When the law says there is no duty of care it seems as though a person can do what they like and that their conduct is unregulated – that they have some sort of 'immunity'.  The alternative is say that the defendant does owe a duty but has or hasn’t breached it. This may seem more palatable and ensures that defendants are not regarded as having carte blanche to act however they like ignoring the consequences.

However, this view appears to assume that once we decided that there shouldn't be liability, it is simply a matter of taste or presentation how we formulate this. So, we might say that there is no duty but we might just as well say that there has been no breach – or even that the loss is too remote (see Chapter 9). Now some judges have indeed claimed this is the case (see Lord Denning MR’s comments in Spartan Steel v Martin & Co [1973] and Lamb v Camden London Borough Council [1981] discussed in the counterpoint box in section 2.5.4), however many would strongly disagree with this view. If we view the duty of care stage as asking whether the law actually does require the defendant to take care, then that is a separate question from whether the defendant has in fact been careful. It is one thing to deny a claim on the basis that the law shouldn't require reasonable care of a given defendant and quite another to say that the law does require this but that on the facts reasonable are has been taken. Moreover, there are clearly cases where it will simply be nonsensical to try and explain the rejection of a claim on the basis of breach rather than a denial of duty - for example Alcock v Chief Constable of South Yorkshire Police [1992] – however we pitch the standard of care it would be implausible to suggest that care had been taken by the Police in their management of the crowd at Hillsborough Stadium.

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