Question:

Consider to what extent in a negligence action the standard of care required is that of a ‘reasonable man’.

Answer:

Introduction

Negligence comprises a very important branch of modern law. An action for the tort of negligence may be brought by an individual against another individual who owed a duty of care towards the former. Liability under the law of negligence would arise when there exists a duty of care and the person who owed such duty had committed breach of the duty. In order to be successful in an action for negligence the plaintiff must establish before the court following essential elements. These include; existence of duty of care of the defendant towards the plaintiff; defendant ought to have committed breach of the said duty of care; the plaintiff must have undergone damage or loss as a consequence of the breach of such duty. The standard for determining as to whether a defendant had committed breach of the duty of care is the test of a reasonable man. A defendant would be held negligent in case he fails to take as much care as a person of reasonable prudence would have taken in the given situation, i.e., if the defendant commits an action or fails to take action which a reasonable person would do in similar situation. The most acceptable definition of a reasonable man is that he is an ordinary man of average prudence. For instance, the standard of care which is expected from a learner driver is the same as that of a driver who is qualified enough. The principle underlying the law of negligence is to place a person who has suffered loss or harm owing to the negligence of another person in such a position as if negligence had not taken place. In other words it aims at compensating the person who has suffered loss or damage on account of negligence of the person who owed a duty of care towards the former person. But law does not provide this remedy to everybody who has suffered loss or damage because of the negligence of another person. This remedy is available only against those individuals who owed a duty of care and have committed breach of such duty.

Historical Development of Duty of Care

The early common law lawyers had not paid much importance to the existence of common principle underlying the various types of liability. ‘Duty’ was for the first time recognized as a unifying theory under the law of torts in Buller’s Nisi Prius which laid down that;

All persons must take reasonable care so as to ensure that he does not end up causing harm to his neighbor. Thus if an individual is hurt or suffers loss owing to the negligence of another person, though the person causing the harm did not intend to cause harm, yet such person would be held negligent. Law entitles the person who has suffered harm to institute an action against the other person (United Kingdom: Negligence: Breach Of Duty, Reasonableness, 1997).

The fact that liability under the law of negligence is dependent upon the existence of duty of care has taken hold very slowly. In the early part of the nineteenth century damages could be claimed for loss suffered due to the negligent conduct of another person, such negligence ought to be established by virtue of existence of duty to take care. By the beginning of nineteenth century party to a contract could sue the other party in case such other party commits breach of tortious duty imposed by law. The case of Winterbottom v. Wright (Winterbottom v. Wright, [1842]) may be cited in this regard. In this case the plaintiff had entered into a contract for driving a mail coach. The contract required that the coach must be kept in a secure and safe condition within the term of the said contract. It was the allegation of the plaintiff that the defendant has proved to be a failure to take the due care which he was supposed to and as a consequence he suffered harm when the couch collapsed and he was thrown from his seat. In the case of Heaven v. Pender (Heaven v. Pender, [1883]) the plaintiff succeeded in recovering damages for injury suffered owing to the negligence of the defendant.

The proper origin of the duty of care may be attributed to the case of Donoghue v. Stevenson (Donoghue v Stevenson, [1932]). The plaintiff had purchased a bottle of bear. Since the beer was contaminated she fell sick after having consumed the beer. The plaintiff brought an action against the manufacturer and the House of Lords accepted the claim of the plaintiff and awarded her damages. The court upheld that the manufacturer of the beer owed a duty to take care towards all those who consumed the beer and the manufacturer has committed breach of the said duty (Weir, 1964).

Present status of duty of care

With the passage of time case laws have established that the duty to take care is deemed to exist under various factual situations. For instance, employers are under the obligation to take due care to protect the employees; drivers ought to take reasonable care to not cause harm to the pedestrians. However, in most cases it is still not clear as to whether duty of care was owed or not. The House of Lords has laid down a new test for determining existence of duty to take care in the case of Caparo Industries Plc v. Dickman (Caparo Industries Plc v. Dickman, [1990]). The court in his case has laid down that in order to determine existence of duty of care the courts ought o ask the following questions;

• Whether the damage or injury caused could be reasonably foreseen?
• Whether a relationship of immediacy existed between the claimant and the defendant?
• Whether it is equitable and reasonable to impose the duty?

The test laid down in this case is as of now accepted to be the basic test to determine existence of duty of care. These are the general rules, the courts have also developed various detailed and restrictive rules as well (Wright, n.d.).

Later in the case of Anns v. Merton London Borough (Anns v. Merton London Borough, [1978]) the courts had laid down the two stage test for determining negligence. These two steps are as follows;

• First of all, whether the defendant owed a duty to take care towards the plaintiff i.e, whether the plaintiff was somebody towards whom the defendant may be reasonably expected to foresee the risk of harm; in case the answer is yes there exists a prima facie duty to take care.
• Then it has to be considered if there existed any strategy consideration which does not permit a duty of care to exist in such a situation. If such policy considerations do not exist then it can be said that a duty to take care existed and the duty may be imposed upon the defendant.

Who is a reasonable man?

The most common definition of a reasonable man is that he is a common man, ordinary man or a person of ordinary prudence. Since the landmark case of Vaughan v. Menlove (Vaughan v. Menlove, [1837]) the reasonable man has been the centre of attraction of the law of negligence. The reasonable man is the focus of common law. Though there exists various explanations regarding the nature of the reasonable man the most accepted one is as follows;

A reasonable man bears resemblance to us, the ordinary human beings. The reasonable man plays a vital role in the law of negligence because he renders the standard on the basis of which court determines the status of the litigants. The actions as well as reactions of the litigants are held to be negligent on the basis of a comparison with the reasonable man. They are held to be negligent to the extent they depart from the standard laid down by the reasonable man and their actions are held to be exemplary to the extent they mirror the standard set by the reasonable man. This aspect was well articulated in the case of Vaughan v. Menlove. In this case Mr. Menlove’s hay crick caught fire and as a result the neighbour’s building was destroyed. Mr. Menolove was aware that the hay crick was of dangerous nature. In this case Mr. Menlove argued that since he is not a person of high intelligence he should be judged on the basis of the standard that required him to act bona fide to the best of his power of judgment. The court rejected this argument by stating that if liability is allowed to be co-extensive with the judgment of each individual-there would be no common legal standard on the basis of which liability could be imposed. The standard would be different for every individual (Korsmo, 2015).

Liability for negligence presupposes a threshold capability for rational activity. The individual who lacks this capacity poses an instant problem for the standard of a reasonable person. It is because of this reason that children below the age of 5 years are completely invulnerable to negligent liability. Again as far as adults are concerned the application of the standard of reasonable man is quite complex. When adults fail to take ration al action the treatment of such action would depend on the source. In cases where the source of failure is found to be physical, it is the trend of courts to forgive the defendant on the basis that such individual lacks minimal capacity (Hayden, 1992). On the other hand when failure is the result of mental incapacity courts are not very lenient. Courts have held that when mental incapacity is to such an extent that the defendant cannot be expected to realize that he owed a duty of care there can be no liability for negligence. However many other courts have attached liability for negligence to such individuals under the principle that he/ she is just being expected to act normally. Thus a mentally sick person may be held liable for negligence as if he were a person of normal prudence (Mullender, 2005).

Case Laws

1. Doughty v. Turner Manufacturing Co. (Doughty v. Turner Manufacturing Co., [1964])

A was the owner of factory and C was the worker. C was injured owing to the falling of an asbestos cover on him. It was not known then that excessive hear would cause chemical change and melt and as a consequence fall. The court upheld that the factory owner was not negligently liable for the injury caused to C as the danger was not foreseeable by a reasonable man before the occurrence o the accident. It was an accident due to factor which could not have been foreseeable by a person of reasonable prudence.

2. Hughes v. Lord Advocate (Hughes v. Lord Advocate, [1963])

The post office had employed workers who dug a manhole. When the workmen went on leave they covered the manhole with a tent and put paraffin lamps on the four corners. A boy aged 8 years took a lamp and went inside the tent. He fell into the manhole with the lamp. The lamp caused an explosion and injured the boy. The court held that the cause of the accident could have been foreseeable by a reasonable man though the way in which the accident occurred was unexpected. The boy was awarded damages in an action filed by him. The post office was made to pay damages.

3. Margereson & Hancock v. JW Roberts Ltd. (Margereson & Hancock v. JW Roberts Ltd., [1996])

A factory was located in an area where the complainants lived. ‘A’ was the owner of the factory. The complainants contracted mesothelomia as a result of exposure to asbestos. The factory owner was held liable for the injury caused to the complainants because the escape of asbestos dust from the factory premises was foreseeable by a reasonable person. The dust which had so escaped caused harm to the complainants. The court in this case held that the test is to see whether the defendant could have reasonably foreseen that his action would expose the plaintiff to any risk. The reasonable foresee ability is determined on the basis of a reasonable person. The court awarded damages to the complainants.

4. Humble Oils Terminals Trustee Ltd. v. Harbour & General Works (Stevin) Ltd. (Humble Oils Terminals Trustee Ltd. v. Harbour & General Works (Stevin) Ltd., [1991])

In this case when the plaintiff was repairing a damaged mooring an accident occurred leading to additional expenses. The condition of soil was foreseeable by a reasonable person. The defendant succeeded in his claim and was awarded damages by the court.

5. The Wagon Mound No. 2, Overseas Tankship (U.K) Ltd. v. The Miller Steamship (Overseas Tankship (UK), Ltd v The Miller Steamship, The Wagon Mound (No 2), [1967])

‘A’ ended up discharging oil from ship into Sidney harbor. The oil was carried by tide and wind into a wharf wherein wielding was being carried on. Having been advised that they could continue with their wielding job they carried on their work. Many hours after the discharge molten metal cased wastes floating on fire. The flames led to a big fire causing damage to ships owned by the plaintiff. The court held that the loss or damage was foreseeable by a reasonable person and was not very remote. It was stated that even if little damage was foreseeable ‘A’ would be held negligently liable for the damage caused as a consequence notwithstanding the extent of foresee ability. In this case A was held liable under the law od negligence for the damage caused to the ships of the plaintiff.

6. Wagon Mount 1 Overseas Tank ship (U.K) Ltd. v. Morts Dock and Engineering Co. Ltd (Wagon Mount 1 Overseas Tank ship (U.K) Ltd. v. Morts Dock and Engineering Co. Ltd., [1961])

‘A’ ended up discharging oil from ship into Sidney harbor. The oil was carried by tide and wind into a wharf wherein wielding was being carried on. Having been advised that they could continue with their wielding job they carried on their work. Many hours after the discharge molten metal cased wastes floating on fire. The flames led to a big fire causing damage to the wharf. The oil also interfered with the use of the plaintiff’s slipways. The court held that the damage to the wharf as a result of pollution of the slipway was foreseeable by a reasonable person of ordinary prudence. But on the other hand the damage caused by fire was not reasonably foreseeable. But since it was the duty of the defendant to keep the oil in a proper condition, the defendants were held liable for the damage.

7. Smith v. Leech Brain & Co.(Smith v. Leech Brain & Co., [1962])

The negligence of the employer led to molten metal being splashed on the face of the employee. As a consequence the employee suffered burns on the face. Additionally the burns aggravated an already existing cancerous condition leading to death of the employee. The court held that when injury to person is caused it is deemed that even minor injury is foreseeable by a person of reasonable prudence.

8. Langley v. Dray 1998(Langley v Dray, [1998])

In this case the plaintiff was injured in a car accident. He was a policeman. The accident occurred while chasing the defendant who had stolen a car. The Court of Appeal in this case held that the defendant knew or may be presumed to have known that he was being chased by the plaintiff and thus if he increases his sped the plaintiff would also have to increase his speed which might cause damage to the plaintiff. It was the duty of the defendant to not create such a risky situation for the plaintiff. As the duty to take care exists and the resultant damage was foreseeable by a reasonable person and the defendant had committed breach of the said duty.

9. Palsgarf v. Long Island Rail Road (Palsgarf v. Long Island Rail Road, [1928])

In this case while a man was boarding a train he was negligently pushed by a member of the railway staff. As a consequence of the fall a package which he was carrying fell down. The package contained fireworks which exploded as a result of the fall. The explosion caused injury to the plaintiff. The plaintiff sued. The court held that it was not foreseeable by a reasonable person that push would lead to an explosion injuring somebody who was far away. Though it was foreseeable by a reasonable person that the passenger himself might be injured by such substance. The Court did not accept the claim of the plaintiff.

10. Commissioner of Customs and Excise v. Barclays Bank Plc (Commissioner of Customs and Excise v. Barclays Bank Plc, [2006])

Two companies owed money to the Customs and Excise Department. The customs department obtained freezing injunction against the bank in which the two companies had their accounts.  But in spite of the fact that the bank was aware of the order they negligently permitted the companies to withdraw from the accounts. As a consequence the customs department could not recover its due. The customs department sued the bank with the claim hat it owed a duty of care towards the department which it has breached. The House of Lords held that it was foreseeable for a reasonable person that in case the bank is negligent in handling the account of the companies then the department would suffer loss yet it failed to take due care.

Conclusion

We may conclude the aforesaid discussion by stating that the law of negligence usually relates to an individual’s conduct rather than his mental status. In majority of cases the defendant is expected to exercise as much care as a an reasonable person would exercise in similar circumstance. In most cases negligence law emphasizes on the reasonable person’s requirement. The reasonable person is in fact a legal fiction. The reasonable person is the ideal person who in a given situation acts in such a manner as person of reasonable prudence would act in the said situation. Courts generally decide negligence cases on the basis of how a reasonable person would have acted in the given situation. In making its decision on the basis of a reasonable person the courts take into consideration what the defendant has experienced, what he knows or even what he perceives. Apart from considering the actual knowledge of the defendant the court also takes into consideration the factors that would be common to all in a specific community.

References

• Commissioner of Customs and Excise v. Barclays Bank Plc [2006].
• Doughty v. Turner Manufacturing Co. [1964]CA.
• Hughes v. Lord Advocate [1963]HL.
• Humble Oils Terminals Trustee Ltd. v. Harbour & General Works (Stevin) Ltd. [1991]CA.
• Langley v Dray [1998]PIQR p.314.
• Margereson & Hancock v. JW Roberts Ltd. [1996]CA.
• Overseas Tankship (UK), Ltd v The Miller Steamship, The Wagon Mound (No 2) [1967] (PC).
• Palsgarf v. Long Island Rail Road [1928].
• Smith v. Leech Brain & Co. [1962]QBD.
• Vaughan v. Menlove [1837]Eng. Rep. 132, p.490.
• Wagon Mount 1 Overseas Tank ship (U.K) Ltd. v. Morts Dock and Engineering Co. Ltd. [1961]AC p.388.
• Anns v. Merton London Borough [1978].
• Caparo Industries Plc v. Dickman [1990].
• Donoghue v Stevenson [1932]UKHL p.100.
• Hayden, P. (1992). Cultural Norms as Law: Tort Law’s “Reasonable Person” Standard of Care. J American Culture, 15(1), pp.45-55.
• Heaven v. Pender [1883]QBD 11, p.503.
• Korsmo, C. (2015). The reasonable person standard: a new perspective on the incentive effects of a tailored negligence standard. European Journal of Law and Economics.
• Mullender, R. (2005). The Reasonable Person, The Pursuit of Justice, and Negligence Law. Modern Law Review, 68(4), pp.681-695.
• UNITED KINGDOM: NEGLIGENCE: BREACH OF DUTY, REASONABLENESS. (1997). Medical Law Review, 5(3), pp.338-341.
• Vaughan v. Menlove [1837]Eng. Rep. 132, p.490.
• Weir, J. (1964). Negligence—Duty of Care—Foreseeability. The Cambridge Law Journal, 22(01), p.23.
• Winterbottom v. Wright [1842]M&W 10, p.109.
• Wright, R. (n.d.). Justice and Reasonable Care in Negligence Law. SSRN Journal