Breach of Duty: Standard of Care

Breach of Duty - 'Standard of Care'

• The conduct must constitute negligence, and there must be a breach
• To breach a duty, the action/conduct must have been voluntary, as per Waugh v James K Allan Ltd 1964 SC(HL) 102
• A duty is breached when conduct 'falls short' of the standard of care
• The standard is objective: that of the 'ordinary reasonable person in the circumstances of the defender'
• The standard varies with the degree of risk; there is no absolute standard, but the degree of care required varies directly with the risk involved as per Lord MacMillan in Muir v Glasgow Corporation 1943 SC (HL) 3
• The standard of care for a learner driver is the same as that of an experienced driver
• Nettleship v Weston [1971] 2 QB 691 is relevant to the standard of care for learner drivers
• Other road users and pedestrians are entitled to expect a certain standard

The Standard of Care: Relevant Considerations

• The onus is on the pursuer to establish the standard of care that ought to have been taken
• Considerations include:
  • The probability of injury
  • Potential magnitude of harm if injury occurs
• Factors include:
  • Risk/probability of accident occurring
  • Magnitude of possible harm
  • Practicality and cost of 'Reasonable' precautions

The Probability of Injury

• Bolton v Stone 1951 AC 850 c.f. Lamond v Glasgow Corporation 1968 SLT 951 illustrate the 'calculus of risk' approach
• Occurrences of a cricket ball being struck out of the ground 6 times in 30 years, or an average of 6,000 golf balls played onto footpaths, are relevant considerations
• Duty to guard, foreseeability, and breach are important factors

The Potential Magnitude of Harm if Injury Occurs

• When a known vulnerability of the pursuer exists, a higher standard than normal may be required with reference to Paris v Stepney BC [1951] AC 367 and St George v Home Office [2008] EWCA Civ 1068
• An employer acting 'reasonably' may have to provide eye protection or different sleeping arrangements
• The more serious the potential harm, the more precautions the defender is expected to take

Reasonable Precautions

• Reasonableness may require ceasing an activity altogether or until matters are resolved
• The burden (cost and practicality) of precautions is important
• Brisco v SofS for Scotland 1997 SC 14; Latimer v AEC Ltd [1953] AC 643 c.f. Collins v First Quench Retailing Ltd 2003 SLT 220 are relevant when considering what is reasonable?
• Changing to 'riot training' should be realistic and not put trainees at a disadvantage
• The risk of exposure to relatively 'small' danger may not require a factory to be closed down completely
• Allowing 'lone working' where there is a foreseeable risk may constitute negligence on the part of the employer

Setting the Standard

• Setting the standard involves determining what the defender did not do that he ought to have done to comply with the duty
• Relevant cases include Harris v Perry [2008] EWCA Civ 907; and Anderson v Imrie [2018] CSIH 18
• It is uncertain if there is an expectation that children be watched 100% of the time?
• Standard of care and foreseeability are vital
• Consideration must be made for supervising children of different ages on a bouncy castle
• Undertaking to look after someone's child but leaving them to their own devices could be problematic

Common/Usual Practice

• There should be consideration if common/usual practices are being followed
• If common practices are not adopted, this could suggest negligence
• Brown v Rolls Royce 1960 SC (HL) 22 is important
• If there is a common practice to provide barrier cream but an 'alternative' provision is made, it creates questions
• Consideration must be made as to whether the employer has done what a 'reasonable' employer would have done

Understanding

• The standard of care and what it means to breach a duty of care ought to be understood
• The legal significance of breaching a duty of care ought to be understood
• The 'professional standard of care' considers a professional person of ordinary skill, current state of knowledge