BREACH OF DUTY TO TAKE CARE

Once it has been determined that a person owes a duty to take care to
another person, it is then necessary to determine whether there has been a
breach or contravention of that duty.
This really involves two different issues:

What is the standard of care that must be observed?

What evidence is there that that standard of care was not observed?

WHAT STANDARDS OF CARE MUST BE OBSERVED?

At one time there were some judicial statements and decisions indicating
that different standards of care were to be observed in different situations.
There were some situations where a person would be expected to exercise a
very high degree of care, and some situations where a lesser degree of care
would be expected.
Different standards of care
Thus, in the eighteenth century Lord Holt CJ, in the case of Coggs v Bernard
(1704) 92 ER 107, spoke of different standards of care where a person was
looking after the goods of another person. In some situations there was
liability only if "gross neglect" was proved, in other situations there was a
duty to exercise "the utmost care," so that slight carelessness could give rise
to liability.
Again, earlier this century, it was considered that when a person was in
control of things that were inherently dangerous such as loaded firearms,
poisons, ammunitions and explosives (things dangerous per se as they were
often termed), there was a duty to take special care: "a peculiar duty to take
precaution", as Lord Dunedin described it in Dominion Natural Gas Co v
Collins [1909] AC 640, 646.
Single standard of care
Since the middle of the twentieth century, however, the courts and also
commentators have preferred to speak of only one standard of care*, i.e. a
duty to take reasonable care, the degree of care that a reasonable person
would take in the circumstances.
Such a standard of care has the two following features:

an objective standard of care*; and

a reasonable standard of care*.

We will now consider each of these aspects.

An objective standard of care

It is the standard of a reasonable person, not the standard of the defendant
that is applied. In other words it is an objective standard not a subjective
standard. It may therefore be higher than, or lower than, or the same as, the
care that the defendant in a particular case would take or observe.
As Lord Macmillan explained in Glasgow Corporation v Muir [1943] AC 448
(Reading 8.1) at 457:
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 in presumed to
be free both from over-apprehension and from over-confidence.

It is sometimes said in England that the standard of care is the standard of

the "the man on the Clapham omnibus", or in America that the standard of
care is the standard of "the man who takes the magazines at home and in
the evening pushes the lawn mower in his shirt sleeves" see Greer LJ in
Hall v Brooklands Auto Racing Club [1933] 1 KB 205, 225.

A standard of reasonable care

It is the standard of care that a reasonable person would take in the
circumstances. In other words it is not a fixed or uniform standard, but is one
which is dependent on all the circumstances of the particular case.
In Glasgow Corporation v Muir (Reading 8.1) (above) Lord Macmillan said,
456:
My Lords, the degree of care for the safety of others which the law requires human beings
to observe in the conduct of their affairs varies according to the circumstances. There is no
absolute standard, but it may be said generally that the degree of care required varies
directly with the risk involved. "

Thus to drive down a busy street in a town at 50 kilometres per hour will
show a lack of reasonable care, but, on the other hand, to drive down an

empty highway or motorway at 50 kilometres per hour would not constitute

a lack of reasonable care. Again to throw a stone on an empty beach would
not demonstrate a lack of reasonable care, but to throw a stone in a crowded
restaurant would certainly show a lack of reasonable care.
The main circumstances that the courts will take into account in determining
what is the standard of care that a reasonable person would observe (what
the man in the Clapham omnibus, and the man who mows the lawn in his
shirt sleeves after coming home from work would adopt), are as follows.

The likelihood of harm arising

The more likely it is that harm will be caused by what is done, the more care
that a reasonable person would take, and conversely the less likely it is that
harm will be caused, the less care that it is reasonable to expect will be
taken. Thus in Bolton v Stone [1957] AC 850 (Reading 8.2), a cricket club was
held to be not liable in respect of a cricket ball, which was hit from a cricket
pitch and sailed over a fence which was 17 feet high and 28 yards from the
pitch, because it was so unlikely that this would happen. Evidence was given
that it had occurred only 6 times in the previous 28 years.
On the other hand, in Haley v London Electricity Board [1965] AC 778
(Reading 8.3), an electricity board was held liable in negligence because the
barrier its employees had erected around a hole they had made in the road.
Whilst it was sufficient to protect pedestrians with adequate sight, it was not
adequate for blind persons, and there were sufficient numbers of blind
persons in that part of London to warrant taking them into account.

The gravity of the harm

The more serious or grave the harm that is likely to be caused to a person,
the more care that a reasonable person would expect to take. Conversely,
the less serious the harm that is likely to be caused, the less care that a
reasonable person would expect to take.
Thus in Paris v Stepney Borough Council [1951] AC 367 (Reading 8.4), the
House of Lords held that when an employer knew that its employee had only
one eye, it should have provided goggles for his use, even though they might
not have been necessary for employees with two good eyes, because injury
to the one good eye would be much more serious to that particular
employee.

The difficulty and expense of taking precautions

The more difficult and expensive it is to take precautions, the less

precautions will a reasonable man expect to be taken. Conversely the easier
and cheaper it is to take precautions the more such precautions will be
expected to be taken. In Daborn v Bath Tramways Motor Co [1946] 2 All ER
333 (Reading 8.5), during World War II in England, the Court of Appeal held
that it was not negligent to drive a left-hand drive vehicle which was not
fitted with signals, even though most vehicles were right-hand drive and
fitted with signals, because to convert left-hand drive vehicles and fit them
with signals would be so difficult and expensive.
If this factor is taken right to its completely logical conclusion, it would tend
to convert the standard of care from one which is impersonal and objective
to one which is personal and subjective, i.e. dependent on the skill and
resources of the defendant. This seems to have happened with regard to
responsibility for natural dangers and hazards. The Privy Council has held
that where a hazard or danger had arisen from natural causes, a tree which
is set on fire by a bolt of lightening, then the courts should have regard to
the resources of the actual landowner on whose land the hazard a danger
has occurred. "In such situations," the Privy Council said, "the standard ought
to be to require of the occupier what is reasonable to expect of him in his
individual circumstances." Goldman v Hargrave [1967] AC 645, 663 (Reading
7.4).

Usual practice
The more that the action in question conforms with what is usually done by
people in the same kind of situation, the more likely it is that that action will
be held to be reasonable. Conversely the more that the action in question
departs from what is usually done the more likely it is to be regarded as
unreasonable. This is an especially significant factor in occupations,
industries and professions where a body of practice has developed and is
usually observed. Compliance with that practice is a strong indication of
reasonableness, and conversely non-compliance with that practice is a
strong indication of unreasonableness.
Thus in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871
(Reading 8.6), the House of Lords held that an important factor in
establishing that a doctor had not failed to exercise reasonable care when he
failed to inform a patient of the possibility of an operation causing damage to
the spinal cord, was that the doctor had acted in accordance with accepted
medical practice.

On the other hand, compliance or non-compliance with usual practice, whilst

indicative of non-negligence or negligence, is not conclusive, and it may be
that the usual practices are considered by the court not to provide a
reasonable standard of care, or alternatively to provide an excessive degree
of care.
Thus in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 (Reading 8.7), the
House of Lords held that an employer failed to ensure reasonable care for the
safety of its workman when working on a roof, although there was evidence
that what the employer had done was "perfectly in accord with good
practice".
Again in Edward Wong Finance Co Ltd v Johnson Stokes and Masters [1984]
AC 296 (Reading 8.8), the Privy Council held that although a solicitor in Hong
Kong had acted in accordance with normal professional practice in Hong
Kong, the solicitor nevertheless failed to exercise a reasonable standard of
care to protect his clients money from embezzlement, because the practice
of the legal profession in Hong Kong did not provide sufficient care for
clients.

Statutory standards
If legislation or subsidiary legislation requires certain action to be done, or
prohibits certain actions, this can be taken as an indication of what is
regarded by the legislature or the subsidiary law maker as reasonable or not
reasonable. Again it is not conclusive, but it is a pointer or an indicator of
what should be considered to be reasonable or unreasonable by the courts.
Thus in Budden v BP Oil Co Ltd (1980) 124 Sol Jo 376 (Reading 8.9), where
the plaintiffs were alleging that they had suffered lead poisoning from the
defendants leaded petrol, the English Court of Appeal took account of the
fact that the lead content was within the limits permitted by government
regulations, as an indication that the lead content was not unreasonably
high.

Public utility of action

The more important an action may be for the public benefit, the more a court
may consider that it is reasonable to run some risk, whereas the less
important an activity the less risk of injury to others is justified. Thus in Watt
v Hertfordshire County Council [1946] 2 All ER 333 (Reading 8.10), the
English Court of Appeal held that it was not negligent for a fire truck when
answering an emergency call to carry a fire appliance that was not properly

secured, because the vehicle which would normally carry it was not
available.

PROOF OF LACK OF REASONABLE CARE

The onus or burden of proving that a person has failed to exercise reasonable
care is upon the person who alleges that there has been such a failure.
Usually this is the plaintiff in proceedings at first instance, but occasionally it
will be the defendant, e.g. if the defendant is making a counter-claim of
negligence against the defendant in proceedings at first instance.
If a case has been taken on appeal to an appellate court, then the burden will
be on the appellant to establish that the judgment appealed from is wrong,
in its finding of reasonable care or of lack of reasonable care, as the case
may be, but if the respondent has lodged a cross-appeal against a judgment
which found reasonable care or lack of reasonable care, then the onus or
burden will be on the respondent to satisfy the appellate court that the
judgment appealed from is wrong.
Degree of reasonable care
As in all civil cases the evidence must be such as to establish lack of
reasonable care on the balance of probabilities i.e. that it is more likely than
not that there was lack of reasonable care by the person alleged to be
negligent. If the evidence is equally balanced, so that it shows that there
may have been, or there may not have been, a lack of reasonable care, this
is not sufficient to prove failure to take reasonable care. The evidence must
be such that it shows that lack of reasonable care is more likely. On the other
hand it is not necessary to go as far as proof beyond reasonable doubt.
Evidence which shows that lack of reasonable care is likely to have occurred
is sufficient.

Burden of proof
Because the legal burden of proof* rests and remains upon the person in a
court of first instance who is alleging that there has been lack of reasonable
care, this means that that person must produce

evidence which directly indicates that there has been a lack of

reasonable care e.g. witnesses who saw a motor vehicle being driven
at 50km per hour in a busy street;

evidence which indirectly or inferentially indicates a lack of reasonable

care i.e. evidence from which a lack of reasonable care may be implied
or inferred, e.g. long black skid marks on the wrong side of the road.

Likewise when a case is taken on appeal, the person who is alleging lack of
reasonable care must be able to show in the record of the proceedings of the
court appealed from:

evidence which directly indicates that there has been a lack of

reasonable care;

evidence which indirectly or inferentially indicates a lack of reasonable

care i.e. evidence from which a lack of reasonable care may be inferred
is implied.

Hearsay evidence
Evidence that directly indicates lack of reasonable care will normally take the
form of testimony by witnesses who personally observed what was done or
not done by the person alleged to have been negligent. Hearsay evidence is,
in accordance with usual rules as to the admission of evidence in court
proceedings, not normally admissible. For this reason convictions of a person
in criminal proceedings of conduct which was taken without reasonable care
are, under common law, not admissible in civil proceedings as proof of lack
of reasonable care. In England, however, legislation was enacted to enable
convictions in criminal cases to be produced in civil proceedings, as evidence
of lack of reasonable care. This legislation, the Civil Evidence Act 1968
(Reading 8.11a), would appear to be in force in Vanuatu as an English statute
of general application. In Fiji Islands, legislation to the same effect has been
enacted in s9 Evidence Act Cap 41 (Reading 8.11b), and in Tonga in s95
Evidence Act Cap 15 (Reading 8.11c).
Inferred lack of reasonable evidence
Evidence may also be produced which indirectly indicates that there must
have been a lack of reasonable care i.e. evidence from which a court can
imply or infer a lack of reasonable care. Thus although there are no
witnesses who can say that they saw the speed at which a vehicle was
travelling, there may be skid marks or damage to the vehicle which indicate
that it must have been driven without reasonable care.
Res ipsa loquotur
One situation where an inference of lack of reasonable care may be drawn is
where something which is in the control or possession of a person causes
harm, but it would not normally cause harm if it were handled with
reasonable care. This is sometimes referred to by the Latin phrase res ipsa
loquitur*, which means the thing speaks for itself. In such cases the very
fact of the harm being caused is sufficient evidence to prove that there must
have been a failure to exercise reasonable care. Thus in Scott v London and

St Katherine Docks Co (1865) 159 ER 665 (Reading 8.12), six bags of sugar
fell from a hoist onto the plaintiff, and the court held that although the
defendant did not give evidence so that the court could not know exactly
how the accident had occurred, nevertheless it could infer there other must
have been a lack of reasonable care, because six bags of sugar do not fall
out of a hoist unless someone has carelessly stowed them on the hoist or
carelessly operated the hoist. Erle CJ made a statement that is often quoted:
There must be reasonable evidence of negligence. But where the thing is shown to be under
the management of the defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of explanation by the defendants, that the
accident arose from want of care.

Thus the Privy Council inferred that there had been a lack of reasonable care
in the manufacture of underwear when excessive sulphites were found in
them: Grant v Australian Knitting Mills [1936] AC 85; and the House of Lords
inferred that there had been a lack of reasonable care by a company in the
driving or the maintenance of one of its vehicles that careered out of control
down a hill: Henderson v Henry E Jenkins & Sons [1970] AC 282 (Reading
8.13).
This inference is particularly significant where the plaintiff is not able to give
evidence as to how exactly the event occurred that caused him harm, and
where the defendant is not able to give evidence, or chooses not to do so,
with the result that there is no evidence before a court as to how exactly the
harm was caused.
As Erle CJ explained in Scott v London and St Katherine Dock Co (Reading
8.12) (above), an inference of lack of reasonable care is only justified " in the
absence of explanation by the defendant". So if evidence is given by the
defendant as to the cause of the event, then it may displace the inference of
lack of reasonable care, and demonstrate that the defendant has taken
reasonable care. As Megaw LJ said in Lloyds v West Midlands Gas Board
[1971] 1 WLR 749, 755". The res, which previously spoke for itself, may be
silenced, or its voice may, on the whole of the evidence, become too weak or
muted".
Thus in Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (Reading 8.14), the
Privy Council held in proceedings claiming damages for injuries caused when
a motor coach veered across a highway and struck a bus coming in the
opposite direction that the principle of res ipsa loquitur was displaced by
evidence given by the defendants driver that the incident had been caused
by the bad driving of a car which he had tried suddenly to avoid.
Alternatively, evidence given by the plaintiff or the defendant may,
demonstrate that there was a lack of reasonable care on the part of the
defendant. Thus in Barkway v South Wales Transport Co [1950] 1 All ER 392

(Reading 8.15) a bus, owned by the defendant company, veered across the
road and crashed over an embankment after one of the tyres of the bus
burst. The defendant gave evidence about its system of tyre inspection and
this showed that there had been a lack of reasonable care in the system of
inspection which caused the defect resulting in the crash. Accordingly, the
House of Lords held that it was not necessary to rely on an inference of lack
of reasonable care arising from the control by the defendant of the bus which
would not normally crash over an embankment. As Lord Porter said, 394-5:
The doctrine [of res ipsa loquitur]s dependent on the absence of explanation, and, although
it is the duty of the defendants, if they desire to protect themselves, to give an adequate
explanation of the cause of the accident, yet, if the facts are sufficiently known, the question
ceases to be one where the facts speak for themselves, and the solution is to be found by
determining whether, on the facts as established, negligence is to be inferred or not.

SUMMARY
At the end of this unit we can now summarise the main points as follows:
1. The courts have required that if a duty to take care is imposed upon a
person, that person must exercise the standard of care that a
reasonable person would exercise in the particular circumstances.
2. The standard of care is:

objective, not subjective, and does not depend on the standards of a

particular person;

not inflexible or rigid, but depends on the circumstances of the case.

3. In determining what is reasonable care in a particular situation, the

courts have regard to:

the likelihood of resulting harm;

the gravity or seriousness of the harm if it does occur;

the difficulty and expense of taking precautionary measures to prevent

the harm;

the normal and accepted practices of people in such situations;

standards indicated in legislation or subsidiary legislation;

the public value and importance of the action being taken which
causes the harm.

4. It is for the person alleging that there has been a failure to take
reasonable care which is usually, but not always, the plaintiff to prove
that there has been such failure.
5. The person seeking to prove that there has been a failure to exercise
reasonable care in civil proceedings must prove this on the balance of
probabilities i.e. that it is more likely than not.
6. A person seeking to prove that there has been a failure to exercise
reasonable care may rely upon an inference of such failure, if it is
shown that something that was in the control of the other person has
caused harm which it would not have caused if reasonable care had
been exercised by the person in control of that thing (res ipsa loquitur).
This is, however, only an inference that may be available from the
facts, but it may be displaced by other evidence to the contrary.