General Standard of Care
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There is no liability in negligence unless the court
determines that the alleged tortfeasor is in breach
of a “standard of care” recognized by law.
Although an objective standard is often applied to
determine what constitutes “standard of care”, the
law often permits the application of subjective or
class-specific or contextualized elements in
determining what ought to be the acceptable
standard of care. Generally speaking, negligence
law invokes the test of the reasonable person.
The Mythical Reasonable Person
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Given its root in a patriarchal society, early law of
negligence adopted the “reasonable man” as the
universal standard for assessing whether a
particular conduct was reasonable or not. Who
was this figure? Did he embody any worldview,
biases, values and perspectives? The reasonable
man was variously described as:
1. A “man of ordinary prudence” (Vaughan v.
Menlove),
“Reasonably careful” (Blyth v. Birmingham)
The Mythical Reasonable Person
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Not an “extraordinary or unusual creature. Not
required to display the highest skill of which
anyone is capable..His conduct is guided by
considerations which ordinarily regulate the
conduct of human affairs. His conduct is “the
standard adopted in the community by persons of
ordinary intelligence and prudence” Arland v.
Taylor. The reasonable person is a legal myth; an
idealized specimen of humanity.
Myth and Reality
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Is the reasonable person test fair to minority
groups?
Does the reasonable person test take into
consideration the different ways in which Native
groups, women and other marginalized groups
view the world? Does the reasonable person take
into consideration the diversity of the world and
the many voices of reason we have”.
If we changed the test would it amount to the
replacement of one caricature with another?
Unreasonably Risky Conduct
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The law of negligence does not seek to
eliminate all forms of risky conduct in
society. What it seeks to deter or punish are
those activities which produce
“unreasonable” risk of harm to society.
What is the test for assessing whether a
particular activity or conduct constitutes
“unreasonable” risk of harm”?
The Utilitarian/Economic Test
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Adopting a utilitarian test, an activity or conduct is
considered “unreasonably” risky and thus
negligent if the danger it creates outweighs its
social value. United States v. Carroll Towing Co.
Applying an economic method of analysis, an
activity is “unreasonably” risky if the cost of
taking precaution and avoiding the accident is
greater than the cost of the injury or harm caused
by the behaviour or conduct. (Posner, An
Economic Analysis of Law).
Query?
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Does the Utilitarian Model resolve all issues of
“reasonableness” that may arise in determining
negligence?
Does the economic analysis offer human-centred
solutions to the unquantifiable aspects of social
responsibility and caring? (see Leslie Bender, at p.
171 of Linden casebook). For example, in Law
Estate v. Simice, it was alleged that the failure to
take a CT scan in an emergency caused the death
of ptf’s husband.
Law Estate v. Simice
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There was evidence that doctors felt
constrained in using CT scans as diagnostic
tools because they were costly to use. In
rejecting this economic approach, the court
reasoned that “if it comes to a choice
between a physician’s responsibility to his
or her individual patient and his/her
responsibility to the medicare system
overall…the former must take precedence.”
Judging “Unreasonable Risk”
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The courts have refused to lay down an inflexible
and universal rule or definition of what constitutes
“unreasonably” risky behaviour. The court and /or
the jury has to decide in each instance whether the
defendant’s conduct is “unreasonably risky” or
not. Tort law, however, recognizes certain factors
which should aid the judge/jury in making a
decision as to whether a particular conduct is
“unreasonably” risky. These factors serve to limit
the abstract nature of the “reasonable person” test.
Possibilities and Probabilities
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The courts have long held that no one
should be required to guard against all
possible risks. A conduct is more likely to
characterized as unreasonably risky if it has
a “substantial” chance of resulting in harm
or injury. As Lord Reid pointed out in SPCL
v. Cooper, “chance probability or likelihood
is always a matter of degree. It is rarely
capable of precise measurement.”
Bolton v. Stone
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From a cricket club, a ball went over a 7ft fence
and hit the ptf who was standing on the adjoining
highway. Such accident had not occurred in 90
years of the club’s existence. However, on 6
occasions in 30 years, balls had crossed the club
fence onto the highway. The HOL reasoned that
although such accident was possibly conceivable,
“the chance of that happening was small” and the
“chance of a person ever being struck even in long
period of years was very small.”
Bolton v. Stone
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In the reasoning of the HOL, foreseeability is the
not the test. This is so because, “in the crowded
conditions of modern life even the most careful
person cannot avoid creating some risks and
accepting others. What a man must not do, and
what I think a careful man tries not to do, is to
create a risk which is substantial. This is a
question not of law but of fact and degree.” c/f
Liebeck v. Macdonald’s (hot coffee case)
Possibilities and Probabilities
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In effect, where the probability or great risk or
great injury is so far-fetched that it could be
ignored, the court is likely to hold that no duty of
care is owed. In Shilson v. Northern Ontario Light
and Power Co., a 12 yr old boy defied barricades
and warning signs to cross a ravine 19ft deep and
300 ft wide to injure himself on a pipe. The court
reasoned that it was most improbable that the most
mischievous and venturesome boy would bring
such injury upon himself.
Gloster v. Toronto Electric Co.,
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In Gloster v. Toronto Electric Co., an 8 yr
old boy was injured when he touched an
uninsulated kept 14-20 inches away from a
bridge. In the opinion of the court,
considering that a large number of people
crossed the bridge daily and were likely to
touch the wire, the probability of injury was
significant and thus necessitated greater
care.
2. Great Risks and Great Injuries
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In addition to the probability of injury, the
court/jury has to consider “the risk of greater
injury.” In the case of Paris v. Stepney Borough
Council, the HOL considered the issue of greater
risk of harm. Dft employed the ptf, a one-eyed
man, as a welder. While using a hammer to
remove a bolt on the undercarriage of a truck, a
chip of metal flew into the ptf’s good eye resulting
in total blindness. Ptf alleged negligence because
dft failed to provide him with goggles.
Two Eyes or One Eye?
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By a split decision, the law lords reasoned that
even though by the custom of the trade, no duty to
provide goggles was owed to welders with two
eyes, given the elevated risk of greater injury to a
one-eyed welder, the duty of care should require
the supply of goggles to the ptf. The dissenting
law lords held that loss of an eye to a man with
two good eyes was so serious that there should be
liability to all employees, two or one-eyed or none
at all.
The Ratio in Paris v. Stepney
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Paris v. Stepney recognized that the
precautions taken in a given case must be
commensurate with the danger posed by the
risky conduct.
3. Object of the Risky Conduct
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Where the objective of the risky conduct is
socially laudable or noble, the law may
sympathize with the dft and excuse liability.
In Marshall v. Osmond, the court held that
the police were not liable in negligence to
the ptf who injured himself while escaping
from a police pursuit.
Priestman v. Colangelo & Anor.
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Smythson stole a car in East York, Toronto. 2
police officers detected the incident and pursued.
Smythson thwarted all their attempts to apprehend
him. The police took aim at the rear end of the tire
and fired. As he fired, the police vehicle hit a
bump and the bullet missed its target, striking the
driver in the neck. The car went out of control and
fatally injured two young women waiting for a
bus.
Smythson v. Colangelo & Anor
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In an action in negligence against Smythson and
the police officers, the SC found Smythson liable
in negligence but dismissed the ptf’s action
against the police officers on the ground that the
danger they created was not too great in the light
of the social value of apprehending a criminal
whose activities posed a menace to other members
of society. Do you agree with this decision? If
Smythson was an elitist but dubious CEO on the
run, would the police have shot at him?
Beim v. Goyer
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Police officer accidentally shot a car thief
he was chasing over rough ground. The
officer had previously fired several warning
shots. The SC held the officer liable in
negligence an unarmed boy running away
on foot posed no danger to the officer or to
anyone else. Compare this case with Watt v.
Hertfordshire County Council