What is negligence?
Negligence is an act or omission (failure to act) which falls short of the standard to be expected of the “reasonable person”.
For a claimant (the person who alleges an individual, company, or body (known as the defendant) was negligent) to prove negligence, they must demonstrate, on the balance of probabilities that the defendant:
- Owed them a duty of care,
- Breached that duty, and
- The claimant’s loss was caused by the breach of duty and was a foreseeable consequence of the breach of duty.
Who is the ‘reasonable person’?
In English law, the reasonable person (formally referred to as ‘reasonable man’) is the ‘man on the Clapham Omnibus.’ This term was first used by Master of the Rolls, Sir Richard Henn Collins in the 1903 English Court of Appeal libel case, McQuire v. Western Morning News.
“One thing, however, is perfectly clear, and that is that the jury have no right to substitute their own opinion of the literary merits of the work for that of the critic, or to try the “fairness” of the criticism by any such standard. “Fair,” therefore, in this collocation certainly does not mean that which the ordinary reasonable man, “the man on the Clapham omnibus,” as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility.”
The reasonable person test is objective and will depend on the circumstances of the case and the experience and skill of the defendant. For example, a junior doctor will not be held to the same standard as a consultant. However, inexperience is not a defence, if a duty of care is owed, the defendant is expected to discharge their duty with reasonable skill and expertise.
How to know if a duty of care is owed to a person?
The test for whether a duty of care is owed by the defendant is laid out in Caparo Industries v Dickman [1990] 1 All ER 568, which asks whether:
- the damage which occurs is foreseeable;
- there is a sufficiently proximate relationship between the parties; and
- it is fair, just, and reasonable in all the circumstances to impose a duty of care.
In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, the test states that the court must ask itself whether or not the defendant has undertaken a responsibility towards the claimant to exercise reasonable care and skill.
The Caparo test has been endorsed by the Supreme Court, however, there is no definitive test as to whether or not the defendant owes a duty of care. The advantage of this is that the court does have scope to consider whether it is just and reasonable to impose a duty of care given the circumstances of the case.
What is meant by the loss suffered by the claimant must have been ‘foreseeable’ by the defendant?
A loss must be reasonably foreseeable to be recoverable. The test is objective and the parties’ intentions at the time the negligent act or omission took place are not relevant. The court will ask itself whether a reasonable person would have foreseen the harm of their act or omission.
An example of where damage was not deemed foreseeable was illustrated in the case of Bolton v Stone [1951] AC 850. The claimant was hit by a cricket ball which landed outside of her home which was situated near a cricket club. She brought a claim against the club for nuisance and negligence.
The claim failed because the court concluded that the club had put all the necessary precautions in place, including a 17-foot high fence. It was also found that the strike was exceptional as although balls occasionally landed outside the fence and in people’s gardens, such an event was extremely rare.
Therefore the likelihood of harm was not foreseeable by a reasonable person. However, had cricket balls regularly landed in neighbouring properties it would have been reasonably foreseeable that a person could be injured.
Wrapping up
Any law student will tell you that the law of tort seems remarkably easy to understand on a surface level but dig a little deeper into the realms of foreseeability, causation, and remoteness and matters quickly become complex.
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This article was adapted from an article by Zurich which can be found here.