Submitted by: Adrienne Wong
Essay Question: What role does the principle of reasonableness play in the law of negligence?
Introduction
Negligence in the law of torts, is a fault-based area of tort that focuses on the commission of negligent or careless offences that result in another’s injury. The law of negligence is comprised of three main elements: (i) duty of care, (ii) breach, and (iii) causation; which are not isolated but are interconnected. The key concept within negligence emphasises the idea of reasonableness, which questions what the reasonable person would have done in certain circumstances, and whether it is fair, just, and reasonable to impose a duty of care or liability on a person’s actions or failure of actions.
How then, is reasonableness measured in law? The reasonable person is in fact a fictional person, but nevertheless provides a mechanism which the courts have relied on as a conceptual yardstick to understand what the average person would have done.[1] However, the law cannot be rigid in their application of reasonableness. Negligence is not limited only to private disputes that are often seen in personal injury cases, but also extends to the public sphere, including investigating the duty of care owed by professionals and law enforcement bodies. Additionally, personal injury does not limit to physical injury, but also includes situations of ‘invisible’ injury such as psychiatric harm. Thus, reasonableness, as interpreted by the court, must account for the unidentical nature of each case.
This paper will demonstrate how reasonableness is used by the courts as a standard-setting yet flexible mechanism to sensibly and rationally view behaviour and structure judgements on liability imposition in the law of negligence. Each element within negligence will be examined to review how the courts’ stance on reasonableness differs in each circumstance, and how reasonableness is used to establish legal tests to evaluate what constitutes liability.
Duty of Care
The first element of negligence is to establish the extent of an individual’s legal obligation to take reasonable care of their conduct towards another individual. The burden of proof rests on the injured party to identify that a duty of care was owed to them, and that such duty is to account for the awareness which one might reasonably foresee a potential injury as a consequence of one’s actions or inactions given a particular scenario.
The essence of foreseeability is an integral part of any argument, which the court often relies on when measuring cases of negligent action with the principle of reasonableness. However, foreseeability, like reasonableness, is not an easily quantifiable ‘black and white’ concept. This is exemplified in Bolton v Stone,[2] where the plaintiff was injured by a cricket ball whilst standing near a highway adjacent to a cricket pitch. The claimant sued for damages against the committee and members of the cricket club for her injuries, which she claimed was a result of the defendant’s nuisance and negligence; she cited that (i) the cricket field was pitched too near the highway on which she had been standing on, (ii) the defendants had failed to implement a fence or barrier of sufficient height to prevent stray balls from being struck out onto the road, and (iii) the defendants had failed to ensure that such balls would not be struck out onto the road.[3] The issue in contention was whether such an incident should have been reasonably foreseeable or reasonably probable.[4]
In the initial judgement, the case against the defendants for negligence and nuisance was unfounded; however, the Court of Appeal overturned the decision and held that while a case for public nuisance was not established, the defendants were liable for the damages sought by the claimant on account of their negligence.[5] The House of Lords unanimously reversed the Court of Appeal decision and held the defendant not liable for negligence. It was established that although there is an associated risk that might be foreseeable with the nature of the sport, it is not enough to use this reason as a standard to compare with the probability of this incident, especially since the chances of this incident were seen too improbable for the reasonable person to have expected the injury caused to the claimant.[6] The Stone case demonstrates the challenges of the court to apply to what extent a duty of care can be reasonably imposed on people performing everyday activities. It is now apparent that foreseeability is not sufficient enough to form the grounds to impose duty of care.
Over the years, the courts have attempted to create a framework to establish the existence of duty by taking into account the intrinsic elements within reasonableness to formulate a system which would aid the identification of negligence in cases, no matter how different or unusual the circumstances were. One such framework is the Anns Test, a two-stage test that complemented the ‘neighbour principle’ and alleviated any uncertainties when determining whether a duty of care was owed.[7] The two steps proposed in order to establish the existence of a duty of care were: (i) whether there would be a sufficient relationship of proximity between the wrongdoer and the claimant who suffered the harm, such that at prima facie, it would be reasonable to envisage the likelihood of causing damage to the claimant as a result of the wrongdoer’s carelessness, and (ii) if the first question was answered, whether there would be other considerations that could potentially contradict the existence of duty of care, or that could reduce its scope.[8] However, the courts began to depart from the Anns Test, cautious about the dangers of allowing assumptions that anyone who suffers a harm or loss could prima facie be entitled to compensation from anyone who could have been said to cause it.[9]
This departure later led to the development of the Caparo Test, which provided a three-step approach to identify a duty of care.[10] The requirements are as follows: (i) there must be a reasonable foreseeability of a possible harm, (ii) there must be a relationship of proximity, relational or spatial, between the claimant and defendant, and (iii) that it must fair, just, and reasonable to determine the existence of a duty of care and liability to be imposed on the defendant.[11] This last requirement is crucial because it implies that satisfying the requirements for foreseeability and proximity does not necessarily or automatically define the existence of a duty of care, but that the circumstances must be viewed holistically to consider whether it is fair, just, and reasonable to impose liability.[12] This widely used method can be seen mapped on to the various circumstances of each tort case; however, the key concept continually emphasised is the role of reasonableness.
In most cases, harm resulting in physical bodily injury is the area most associated with in the law of torts. However, where there are instances of ‘invisible’ injury, such as psychiatric harm, the method to determining foreseeability, proximity, and reasonableness is often complicated. In Page v Smith,[13] the claimant, though physically unharmed after a car collision as a result of the defendant’s negligent driving, suffered a relapse of acute chronic fatigue syndrome. The House of Lords asserted that it was essential to distinguish the claimant as a primary victim, and as a result, that the defendant owed a duty of care to avoid inflicting personal injury on the claimant.[14] The main issue is whether the defendant should have reasonably foreseen that his negligence would cause the claimant to suffer a personal injury; it is irrelevant to question whether the type of psychiatric injury suffered by the claimant was reasonably foreseeable.[15] To exemplify a case for secondary victims, in Alcock v Chief Constable of South Yorkshire Police,[16] the claimants brought an action for psychiatric injury resulting from the 1989 Hillsborough Disaster where relatives that had been present had been either severely injured or killed. It was held that in order to argue a claim for psychiatric injury resulting from shock, the following must be demonstrated: (i) the reasonable foreseeability of the injury, (ii) a sufficiently proximate relationship between the claimant and defendant, (iii) the closeness of a relationship between the claimant and the primary victim i.e. spouses, parents, children, and (iv) the proximity of the time and space of the incident or its immediate aftermath.[17]
As exemplified by the chosen cases and legal tests above, the role of reasonableness as assessed by the courts takes into account a multitude of factors that distinguish the circumstances of one case with another. The principle of reasonableness demonstrates that the elements of foreseeability and proximity themselves are insufficient in establishing a duty of care. Rather, the elements are connected with reasonableness and ‘informs’ each other when determining whether an action causing harm warrants the imposition of a duty of care and liability.
Breach
To constitute a breach of a duty of care, it has been established that the role of reasonableness intertwines with the foreseeability of harm. In determining the standard of care of the defendant, the previous section has examined the objective test used by courts to illustrate and evaluate what the hypothetical reasonable person would have done given the circumstances of the situation.[18] This, however, does not take into account certain factors directly relevant to the defendants themselves. The standard of care in this regard, is therefore determined by considering factors including accounting for the defendant’s motives, intelligence, knowledge, experience, competency of skills, knowledge concerning the claimant, the ability to foresee an act by a third party, age, and disability.[19]
In Mullin v Richards,[20] two fifteen-year-old female classmates engaged in a mock sword fight with their plastic rulers, when one of the rulers snapped and caused a fragment to enter into the claimant’s eye, resulting in partial blindness. The question concerned what factors of the defendant might be pertinent when determining the appropriate standard of care that should be applied. It was held that the behaviour of the defendant cannot be compared with that of the hypothetical reasonable adult; as such, the standard of care should be that of the hypothetical fifteen-year-old schoolgirl.[21] The defendant was subsequently found not negligent; it was held that a fifteen-year-old school girl would not have reasonably foreseen the possibility of injury for every ruler fight or the consequences of both girls’ negligent conduct.[22]
In Roberts v Ramsbottom,[23] a car collision occurred after the defendant, though unaware to him, suffered a minor stroke before beginning to drive. The issue was whether negligence could be imposed for an act committed from unbeknownst impaired consciousness. However, the defendant was still held liable because (i) the defendant should have been aware that he was unfit to drive at the first instance of feeling dizziness or initial experience of other symptoms of a stroke, and (ii) that only situations wholly beyond the defendant’s control could excuse the defendant from the usual objective standard of care he owed.[24]
The parameters to determine the standard of care owed by professionals considers the same factors stated above; although, the main emphasis is perhaps focused on the professional’s set of skills and competence. This is particularly exemplified in medical negligence cases and instances of a healthcare professional’s breach of duty of care. In Bolam v Friern Hospital Management Committee,[25] the claimant voluntarily agreed to undergo electro-convulsive therapy but was not administered any muscle relaxant drugs and was not restrained before the procedure took place; subsequently the claimant suffered serious injuries. The claimant brought an action for damages, arguing that the defendants were negligent as a result of (i) their failure to administer the muscle relaxant drug prior to the treatment, (ii) their failure in providing options of manual restraints, and (iii) their failure to make all the information of the risks associated with the procedure available to the claimant prior to the treatment.[26] However, it was held that the doctor could not be found liable for negligence if his actions were exercised in accordance with the general practices of his field, nor if there exists alternative opinions or options of practices.[27] The case established the Bolam Test, which asserted that in the case of determining the reasonable standard of care for professionals (i.e. doctors), the standard relies on the matters of practice and medical judgement of healthcare professionals who, possessing the same level of expertise and skills would agree on the acceptability of a professional’s particular conduct.[28] However, the departure of the Bolam Test was apparent in Bolitho v City and Hackney Health Authority where it was held that the rigid guidelines imposed in Bolam had no grounds for application when addressing issues of causation.[29] The reliance on the Bolam Test was also questioned in Montgomery v Lanarkshire Health Board where it was held that the extent to which a duty of care was breached by a medical professional on the basis of their common conduct in their field, was irrelevant to issues of advice and warning.[30] The evolution of the Bolam Test demonstrates how the court takes into account the changing circumstances of each case that cannot be perfectly fitted into previously established guidelines. To understand the difficulty of developing reasonable standards of care, inflexibility must be abandoned in order to consider the various factors of each case.
In most tort cases, issues of duty of care and establishing standards of care are most frequently between private individuals (i.e. traffic accidents). However, these standards are considered separately when examining tort cases involving public authorities, such as law enforcement bodies. This is because the nature of the incidents and the circumstances are often compared with the obligations, discretions, and decision-making responsibilities associated with their work. In Robinson v Chief Constable of West Yorkshire Police,[31] the claimant, described as a frail seventy-six-year-old woman, was knocked over on the street during two police officers’ attempt at apprehending a fleeing criminal. The claimant brought an action against the chief constable, arguing that the negligence of the two police officers during the pursuit of the criminal had resulted in her serious personal injuries.[32] The decisions from the Trial of First Instance and the Court of Appeal both agreed and held that while the police officers had indeed been negligent and failed to reasonably foresee the risk of injury to pedestrians during the pursuit, they did not owe a duty of care to the claimant, and that even if there was, they were not in breach of that duty of care.[33] However, the Supreme Court held that although public authorities generally owed no duty of care, the police officers were held liable for negligence since the cause of injury sustained by the claimant should have been sufficiently reasonably foreseeable as a consequence of their negligent actions.[34]
The standards of care to account for breach do not only depend on the specific circumstances of each case, but also must consider the factors pertinent to the defendant. The courts must also look into the different approaches for considering standards of care owed by professionals and public authorities to determine the appropriate standards reasonable for each circumstance.
Causation
In establishing a tort claim, the defendant’s actions are not the sole determining factor of the resulting consequences. A holistic view of all circumstances, including the conditions in which the incident took place are also considered.[35] Although extenuating circumstances and conditions are taken into account, the law focuses on the impact of human actors.[36] Thus, in factual causation, the emphasis is on examining the causes and effects to prove whether the actions of the defendant can be reasonably classified as a factual cause directly related to the claimant’s injury. The development of the ‘but for’ test is applied to address this question; it is framed in the following: ‘but for the defendant’s negligent actions, or, but for the defendant’s breach of his duty of care, the claimant would not have suffered harm.’[37] As such, if the answer to this question is ‘no’ without any further complications in the circumstances, the defendant will be liable. If ‘yes,’ the defendant cannot be made liable because his actions would not have contributed or made a difference to any harm or loss claimed by the claimant.[38] In Barnett v Chelsea and Kensington Hospital Management Committee,[39] the deceased was sent back home from the casualty department of the hospital after complaining that he was experiencing severe vomiting; he later died due to arsenic poisoning. However, on applying the ‘but for’ test, the court dismissed the widow’s claim. It was held that although (i) a duty of care owed by the hospital authority and (ii) negligence resulting from a breach of duty due to the doctor’s failure to examine the deceased, can be clearly established, the deceased’s condition at the time was such that medical attention from the hospital would not have saved him; thus, causation was not justified.[40]
In legal causation, the question is whether the defendant is liable for further damage when (i) the defendant commits a tortious act at an earlier time, and (ii) another incident at a later time occurs, giving rise to further damage.[41] The legal test is the ‘novus actus interveniens’ concept, which seeks to account for the intervention of other causes such that it limits or relieves the defendant from further liability; the three categories are: (i) an act of nature (or of God), (ii) the claimant’s own conduct causing further damage, and (iii) the conduct of a third party. In McKew v Holland & Hannens & Cubitts (Scotland) Ltd,[42] the claimant suffered a leg injury as a result of the defendant’s negligence; but later (and not fully recovered) attempted to descend a steep staircase unaided, and subsequently caused a second injury to himself. The defendant was only held liable for the first injury; the second injury only resulted from the claimant’s own conduct.[43]
Conclusion
The principle of reasonableness in the law of negligence is used by the courts to establish a standard which can be used when determining the existence of a duty of care, a breach to this duty, the factual and legal causation claims, and whether such would be reasonably sufficient to warrant an imposition of liability on the defendant. Since the circumstances of each case vary greatly, there is no universal standard that can be relied on. The development and implementation of various legal tests have proved that rigid guidelines cannot be viewed as practical in every case; and that such legal tests are constantly departed from or are evolving to further improve and provide a broader framework that could be better mapped on to cases despite the specificities of each circumstance. Thus, the courts must adopt a flexible approach when determining the reasonable person standard, based on the ever-changing personalities of the fictional reasonable person. It is the pursuit of judicial nonconformity that allows the formation of relevant and appropriate standards to be achieved to advise negligence cases in the law of torts.
Bibliography
Table of Authorities
Cases
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Anns v Merton LBC [1978] AC 728
Barnett v Chelsea and Kensington Hospital Management Committee [1968] 2 WLR 422
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney Health Authority [1998] AC 232
Bolton v Stone [1950] 1 KB 201
Bolton v Stone [1951] AC 850
Caparo Industries v Dickman [1990] 2 AC 605
Carmarthenshire County Council v Lewis [1955] AC 549
Chester v Afshar [2004] 3 WLR 927
Corr v IBC Vehicles Ltd [2008] 1 AC 884
Donoghue v Stevenson [1932] UKHL 100
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210
Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12
Mansfield v Weetabix Ltd [1998] 1 WLR 1263
McGhee v National Coal Board [1972] 3 All ER 1008
McGowan v Stott (1930) 99 LJKB 357n
McHale v Watson (1964) 111 CLR 384
McKew v Holland & Hannens & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
McLoughlin v O’Brian [1983] 1 AC 410
Miller v Jackson [1977] QB 966
Montgomery v Lanarkshire Health Board [2015] 2 WLR 768
Mullin v Richards [1998] 1 WLR 1304
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd “The Wagon Mound” [1961] AC 388
Page v Smith [1996] AC 155
Paris v Stepney Borough Council [1950] 1 KB 320
Roberts v Ramsbottom [1980] 1 All ER 7
Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595
Smith v Leech Brain and Co Ltd [1962] 2 QB 405
Stovin v Wise [1996] UKHL 15
Turner v Mansfield Corporation (1975) 119 SJ 629
White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1
Wright v Lodge [1993] 4 All ER 299
Yachuk v Oliver Blais Co Ltd [1949] AC 386
Bibliography
Books
Witting C, Street on Torts, (15th edn, Oxford University Press 2018)
Journal Articles
Gardner J, ‘The Many Faces of the Reasonable Person’ (2015) 131 LQR 563
[1] John Gardner, ‘The Many Faces of the Reasonable Person’ (2015) 131 LQR 563. [2] [1951] AC 850. [3] Ibid. [4] Ibid. [5] Ibid. Refer also to: Bolton v Stone [1950] 1 KB 201. In the Court of Appeal decision, the principle applied was ‘res ipsa loquitur’ which asserted that the mere occurrences of certain types of accidents are sufficient to impose negligence. The principle applies only when it is clear that the defendant is in control or responsible for owing a duty of care. See: Christian Witting, Street on Torts (15th edn, Oxford University Press 2018) 142-144. Refer also to Turner v Mansfield Corporation (1975) 119 SJ 629; McGowan v Stott (1930) 99 LJKB 357n. [6] [1951] AC 850. [7] Anns v Merton LBC [1978] AC 728. For ‘neighbour principle,’ see Donoghue v Stevenson [1932] UKHL 100. [8] [1978] AC 728. [9] Stovin v Wise [1996] UKHL 15. See also Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210. [10] Caparo Industries v Dickman [1990] 2 AC 605. [11] Ibid. [12] Witting (n 5) 39. [13] [1996] AC 155. [14] Ibid. To refer to the distinction between primary and secondary victims, see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. [15] [1996] AC 155. Refer Witting (n 5) 72 for the ‘eggshell skull rule’ which states that regardless of the type of injury sustained, the frailty, fragility, or special sensitivities or circumstances of the claimant cannot be used as a defense. [16] [1992] 1 AC 310. [17] Ibid. Regarding (iii), ‘remote’ relatives i.e. siblings and in-laws are not included, unless a strong relationship is proven otherwise. Refer also to McLoughlin v O’Brian [1983] 1 AC 410; White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1. [18] See Witting (n 5) 122-128 for circumstantial factors extraneous to the defendant. Factors include considering the likelihood of harm, the severity of harm, the social impact or general public interest of the defendant’s conduct, the implication of emergency situations, the balance between the cost of preventing the risk and the cost of the risk occurring, common practices, and the exigencies of life. Refer also to Miller v Jackson [1977] QB 966; Paris v Stepney Borough Council [1950] 1 KB 320; Carmarthenshire County Council v Lewis [1955] AC 549. [19] Witting (n 5) 128-136. [20] [1998] 1 WLR 1304. [21] Ibid. [22] Ibid. Determining the standard of care of child defendants has been contentious. The approach was questioned on whether it takes into account the child’s actual intelligence and maturity. See Witting (n 5) 135. Refer to Yachuk v Oliver Blais Co Ltd [1949] AC 386 and McHale v Watson (1964) 111 CLR 384. [23] [1980] 1 All ER 7. [24] Ibid. See also Mansfield v Weetabix Ltd [1998] 1 WLR 1263. [25] [1957] 1 WLR 582. [26] Ibid. [27] Ibid. [28] Ibid. [29] [1998] AC 232. In this case, the breach of duty consisted of the omission to perform an act which ought to have been done. The application of the Bolam Test to understand whether the issue constituted a continuing exercise of proper care was insufficient. [30] [2015] 2 WLR 768. It was held that a medical professional should not have to question whether a duty to disclose in any given case existed and whether the failure to do so constituted a breach. [31] [2018] 2 WLR 595. [32] Ibid. [33] Ibid. Refer to the decision in Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12 which suggested the existence of judicial ‘blanket immunity.’ Many claims for negligence against public bodies fail due to the responsibilities associated with their work. The standards of care for claims of negligence against public bodies is then considered alongside human rights law. Refer to Witting (n 5) 102-106. [34] Ibid. The Supreme Court asserted that although the imposition of a duty of care on the police was usually unfounded, it did not confer a blanket of immunity to cover all actions of public authorities. The interpretation in Hill v Chief Constable of West Yorkshire was clarified to indicate that negligence liability can still be imposed on police officers for injuries directly caused by a negligent action or omission. [35] Refer to Wright v Lodge [1993] 4 All ER 299 where the visibility and weather conditions complicate the true causal relationship of a severe traffic accident. [36] Witting (n 5) 152-153. [37] Witting (n 5) 151, 154. [38] Witting (n 5) 154. [39] [1968] 2 WLR 422. [40] Ibid. However, it must be noted that the application of the ‘but for’ test cannot be practical for each case. Circumstantial complications or uncertainties: refer to Chester v Afshar [2004] 3 WLR 927; McGhee v National Coal Board [1972] 3 All ER 1008; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. [41] Witting (n 5) 168. Legal causation only arises once factual causation has been established. [42] [1969] 3 All ER 1621. [43] Ibid. Compare with Corr v IBC Vehicles Ltd [2008] 1 AC 884; Smith v Leech Brain and Co Ltd [1962] 2 QB 405. Refer also to issues of remoteness of damage, see Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd “The Wagon Mound” [1961] AC 388.