THE DUTY OF CARE OWED BY INSTRUCTORS IN A SPORTING CONTEXT
William Norris QC 1, Barrister, Thirty Nine Essex Street Chambers.
Introduction
1.
It is axiomatic that those who profess to have particular expertise and are exercising a
supervisor’s or instructor’s role, or who take decisions affecting the health and safety
of those for whom they are responsible, are almost bound to be held to owe a duty of
care 2. But by what standard should they be judged? Is it enough to say that the test is
simple one of reasonable care in the circumstances – that is, essentially a factsensitive test to be applied on a case-by-case basis according to a test of professional
competence such as may be found in Bolam v Friern Hospital Management [1957] 1
W.L.R 583 3?
2.
Or is the necessary analysis somewhat more sophisticated than that?
3.
The answer suggested here is that the necessary analysis of the applicable standard of
care goes well beyond a simple judgement as to what is or is not reasonable care in
the circumstances, whether by application of the Bolam test or otherwise. Indeed, it is
suggested that the Bolam test is of strictly limited value and is certainly not decisive
of all issues in relation to the decision on standard of care.
4.
The context for this article is the decision of Foskett J in November 2008 in Anderson
v Lyotier [2008] EWHC 2790, a case in which the central question was whether a ski
instructor/guide had been negligent in his supervision/instruction of the 41 year old
claimant who suffered catastrophic injuries when ski-ing off piste. The Judge at first
instance 4 judged the instructor’s conduct largely according to the Bolam test and,
1
2
3
4
William Norris QC (with Bernard Doherty), instructed by Clyde and Co, acted as Leading
Counsel for the Defendant/Appellant in Anderson case in the Court of Appeal. The appeal was
compromised before it was heard.
See, for example, Charlesworth and Percy on Negligence, 11th edition at 2-74 et seq: a new
(12th) edition is imminent.
The value of which is considered at para 6-49 et seq of Charlesworth
To be fair to the Judge, because this was in essence the way both parties argued the case.
2
finding it fell below the required standard, went on to hold him to have been
negligent and such negligence to have been causative of the accident.
5.
References to the Anderson case in the textbooks 5 do not always note the fact that
permission to appeal was granted nor that the defendant’s case was substantially reformulated thereafter. Nor may it be widely appreciated that the appeal was
eventually compromised before it was heard. To that extent, the jurisprudential value
of the first instance decision is limited6.
6.
Whilst Anderson may be the context for the article, the underlying legal issues to be
considered are far wider and certainly include other cases in which the claimant has
been injured whilst under the guidance and instruction of others. The principles
considered here apply equally to any guide or instructor in an activity involving risk
– which includes many sports and recreation.
7.
The principles are also – at least in theory – applicable to cases involving children as
they are to adults. But it should also be remembered that just as it is more easy to
establish a duty of care as between adults and children – not least because of the
assumption of responsibility which is the key to that point 7 - so also do courts tend to
demand a higher standard of care in practice where children are involved.
8.
It should also be appreciated – and the Anderson case demonstrates - that there is not
always a perfectly clear dividing line between the theoretically different concepts of
duty and standard of care. That is because it is also necessary to consider the extent
of the duty of care, where there may well be an overlap. It may, for example, be easy
enough to see that A owes B a duty of care. And it may be easy also to be critical of
what B did. But that last answer only decides the issue of negligence if B’s duty
extended to the point that what he did wrong constituted a breach of duty and was
causative of the accident.
5
6
7
Such as in Charlesworth at 2-74
As a general point, all practitioners should remember that whilst first instance
decisions may be interesting, useful and illuminating, they are not authoritative decisions by
an appellate tribunal.
And which the present author has already addressed in earlier editions of JPIL – a principle reaffirmed in most recent Court of Appeal decisions where the point is in issue – see, for
example, Ministry of Defence v Radclyffe [2009] EWCA Civ 635
3
9.
For present purposes, however, we shall assume an adult claimant, as was the case in
Anderson. This will be relevant to both the extent and the standard of care in general,
and to foreseeability in particular, a concept which is not only relevant to the
existence of a duty of care – in the Donoghue v Stevenson sense – but also helps to
determine the standard of care by reference to the gravity of the risk involved. That
the claimant is an adult is also relevant to the concept of individual free will 8 which
will also be important as regards both the standard and extent of the duty of care and,
perhaps, to free-standing arguments on causation.
Permission to appeal in Anderson
10.
All those points would have been in issue had the Anderson case actually got to the
Court of Appeal – that is whether the Judge was right to approach the issue of
negligence as he did: particularly, whether he correctly formulated the extent of the
duty of care and/or decided the issue of standard of care according to too high a
standard in that he failed to recognise that the chance that such an accident with so
catastrophic an outcome might occur was so very remote that it was not reasonably
foreseeable and took no adequate account of the fact that the claimant freely (if
reluctantly and with reservations) chose to descend this slope.
11.
Permission to appeal was granted by Waller LJ on 31st March 2009 for the following
reasons:
8
“1.
It is arguable that Foskett J may not have applied the correct legal test for
negligence.
2.
The test he applied was to ask [at para 118] “Was it reasonably foreseeable
that any one of these three individuals would have fallen or lost control of
their skis when negotiating this terrain” and, if so, “was there a reasonably
foreseeable risk of impacting with a tree in consequence”. He answered both
questions in the affirmative and further held [at para 133] that “there was a
foreseeable risk of serious injury if anyone fell on this slope in the vicinity of
the trees”. On that basis Foskett J found that there had been a breach of duty
from which liability followed.
3.
The Appellant asserts that reasonable foreseeability is on its own too low a
threshold for determining whether a duty has been breached and submits
[skeleton, para 17] instead that “The proper question for the learned judge
Something increasingly emphasised by the courts – most memorably by Lord Hoffmann in
Tomlinson v Congleton BC [2004] 1 A.C 46
4
was: did bringing the claimant to the accident slope carry with it an
unacceptably high risk of serious injury?”
4.
It is arguable that in the context of a sport involving a risk of injury the
judge’s test imposes too low a threshold.”
The facts in Anderson
12.
The key facts were as follows:
(i)
This was, effectively 9 the Claimant’s third skiing holiday and he was
reasonably regarded as a skier of “intermediate” standard. He was in good
health and reasonably sporty.
(iii)
He had arrived with his family at the resort on the previous Sunday, 1st
February 2004, had skied each day thereafter, and had been allocated to this
instructor’s group on the Monday morning.
(iv)
During the course of the week the group had made steady progress from blue
pistes and by the time of the accident had successfully completed red pistes
including one particularly steep descent. However, the group in general (and
the claimant in particular) had very limited experience of off-piste skiing,
having made one such descent on the Wednesday on which he had
“struggled”. They also did some off-piste skiing on the Thursday but, again,
the Claimant fell a number of times.
(vi)
On the Saturday, after warming-up appropriately, the group was taken offpiste by the instructor with no particular warning or advice as to where they
were going or what they were going to do. The route they took involved
skiing across a prepared piste to an off-piste slope. But this off-piste area was
not as steep as, for example, at least one of the red slopes they had previously
experienced. On the other hand, it was steeper than anything that at least the
claimant and his wife had previously experienced off-piste.
9
Apart from two other minor and unimportant experiences of skiing.
5
(viii)
When he was at the top of this slope, the claimant thought that, in terms of
steepness at least, it looked like a red slope (see judgment, paragraph 65) and
his wife said something about thinking it was beyond her capabilities.
(ix)
The claimant did not enjoy off-piste skiing but had not said as much to the
instructor. But the latter would have been able to have seen for himself the
difficulties that the claimant had previously had falling over when off-piste.
(x)
Had the claimant not been willing to continue down this off-piste descent,
and had he expressed concern about his limitations and sought advice from
the instructor, he could have returned by a straightforward traverse to the
piste from which he had come. Or he could have side-stepped or side-slipped
down any off-piste section that he found particularly difficult or could have
made a series of long traverses, step-turning at the end of each or he could
have sought particularly close supervision advice from the instructor.
(xii)
Instead, he set off down the slope and made at least two successful turns, one
of which was “quite a controlled turn” with which he was “pleased” 10.
Having made those turns he came to a stop near a bush.
(xiii)
The Claimant had completed at least half the full length 11 of the slope when
he stopped before setting off for the final time. He then continued but lost
control/balance on the next (left) turn and collided with a tree.
(xv)
The full length of the off-piste section that the Claimant was trying to
descend was probably only around 30-50 metres 12.
The Judge’s approach to the question of negligence
13.
The Judge seems to have approached the case simply on the basis that if the instructor
ought to have realised that this slope was beyond the level of the claimant’s apparent
10
11
12
Judgment, paras 99-100. However, one witness (by contrast) said he thought the Claimant
“struggled” in that first section.
In total, this whole off-piste section was only 30-50 metres long
See the joint statement at paragraph 4(vi) at [1/22/215] and see Judgment paragraph 105.
6
competence then it necessarily followed that he was responsible in law for the
consequences of any fall that the claimant might have sustained on that run, whatever
the circumstances, simply because taking him down a slope that was beyond his
competence made it more likely that he would lose control and/or fall and/or collide
with something or someone.
14.
The Judge did not, however, find that the slope had any special danger or any
exceptional hazard as might have been the case had it been a slope which was beyond
his capabilities and had an unprotected precipice at one side.
15.
Even if the Judge was entitled to criticise the instructor’s judgment according to the
Bolam test, his error, as would have been submitted on appeal, was in failing to
acknowledge that distinction, so failing to identify what additional danger, if any,
was created by taking them down that slope – a point relevant to both extent and
standard of care as well as to causation. Quite simply, he formulated the duty of care
in such a way that the necessary precondition of foreseeability (of the consequences
of failure) was disregarded.
The Bolam test; value and limitations
16.
As was acknowledged above, it would be unfair to criticise the Judge’s concentration
on the Bolam test when the approach of the parties at trial had been based on that test,
not least because it had been applied in the skiing context in Chittock v Woodbridge
School [2002] EWCA Civ 915: in short, the parties’ approach was to apply the Bolam
test to evaluate the instructor’s decision as to the suitability of the slope given the
claimant’s level of actual/apparent competence.
17.
The Judge himself (at paragraph 123 of the judgment) made it clear that he found the
Bolam principle of only limited value and application. With respect to those who
have argued the case at trial, the Judge was right to express those reservations.
18.
Certainly, the Bolam test can be – and was - a valuable tool in deciding whether or
not the instructor made a mis-judgment according to the standards of reasonably
competent ski instructors. If the answer to that question were that he could not be
criticised according to that yardstick, then that should have been the end of the case.
7
But just because the instructor made an error of judgment did not automatically mean
that he was also guilty of actionable negligence. For that to be true, further analysis
is needed.
19.
The reason why Bolam (obviously) is of only limited value is because in cases of
clinical mis-judgment one can sensibly concentrate on the wisdom or otherwise of
the decision itself without having regard for any questions of the reasonably
foreseeable outcome of those decisions. In such a case, reasonable foreseeability is
hardly ever an issue since it in most – if not all – such cases it is eminently
foreseeable that a clinical error will have catastrophic consequences.
20.
But the same does not apply in the sporting context, for obvious reasons. In cases
such as this, one must identify the nature and possible consequences of the additional
risk to which the instructor will have exposed his student (the claimant) in the event
that he should not have taken him on this slope.
That is what is meant by
‘foreseeability’ in context.
What was the risk involved?
21.
In taking him down this slope, the additional risk (of loss of control, fall or collision)
was really no additional risk at all.
Put at its highest, it was an added risk that he
might fall and/or lose control, which was a risk which similarly existed on any other
relatively difficult slope and, in fact, even on an easy slope.
Risk and foreseeability in the instant case
22.
The risk of a fall in the absence of any other special circumstances was not a risk that
brought with it a likely “adverse outcome” 13 in the sense of a fall with serious
consequences. Naturally, that analysis is bound to be fact-sensitive. In Anderson, the
fall in prospect was no more dangerous than the kind of fall that the claimant or any
other skier might have had on or off the piste. Of course, any loss of control brings
with it some risk of collision: all skiers, on or off the piste, face the risk of colliding
13
To use the language of the claimant’s expert witness
8
with any hard object whether it be pylon, rock face, other skier, snowmaking
machine, tree or whatever if he loses control.
23.
The point is that there was no special or additional risk that made a serious incident
likely, such as there might be if one took an inexperienced skier down a slope where
he might well lose control and there was an unprotected precipice on one side of it –
the example given above. There one would say that the instructor was negligent
because any such risk would be unacceptable and it would be easy enough to show
how that decision was causative if a pupil fell over it to his death.
24.
But it can hardly be suggested that the trees on this slope constituted such additional
risk. It is possible to collide with a wide variety of things or people on any slope. The
risk of serious injury from such a collision is so small and remote that in no sense can
the presence of some trees be characterised as foreseeably creating an unusual or
unacceptable hazard.
25.
Significantly, there was no evidence that any such risk was within the experience of
those who gave evidence at trial and the un-contradicted evidence of the defendant’s
expert was that he had never come across an injury of such severity (see judgment
paragraph 132).The claimant’s expert said much the same thing in cross-examination.
26.
Yet the Judge found (also paragraph 132) that the “potential for serious injury (was)
clear”. The fallacy is that this is to equate “potential” or “remote possibility” with an
outcome that was reasonably foreseeable – an elementary error as can be
demonstrated in our legal analysis below.
Reasonable foreseeability and the standard of care
27.
Assuming that the Judge was entitled to hold that the decision to take the claimant
down that slope was a misjudgement then, as a matter of law, his misjudgment only
translates into actionable negligence if it could be shown that it was likely to result in
a significant increase in risk of serious injury.
28.
It is important to emphasise that we are not here concerned with foreseeability in the
context of the right test for remoteness of damage. The Anderson case has nothing to
9
do with the principle (derived from policy 14) that a defendant has to take his victim as
he finds him so that so long as it was reasonable to foresee some injury, however
slight, the defendant is answerable for the full consequences of it. The test of
foreseeability as a necessary ingredient of negligence cannot be so expressed.
29.
This analysis of the required standard of care as expressed through the cases can
conveniently begin with Morris v West Hartlepool Steam Navigation Co [1956] AC
552 (a claim by an employee against his employer) where (at p574) Lord Reid said as
follows:
“It is the duty of an employer, in considering whether some precaution
should be taken against a foreseeable risk, to weigh, on the one hand, the
magnitude of the risk, the likelihood of an accident happening and the
possible seriousness of the consequences if an accident does happen, and, on
the other hand, the difficulty and expense and any disadvantage of taking the
precaution.”
30.
In making that assessment, it is apparent that the magnitude of the risk is always an
important – perhaps a decisive - consideration. Bolton v Stone [1951] AC 850 is
perhaps the best known example of that principle. It was a case in which a cricket
ball, driven out of the ground, struck and injured a passer-by. It was accepted that the
owners/occupiers of the ground owed a general duty to those on the highway but it
was the extraordinarily improbability of the outcome that meant there was no breach
of such duty. Lord Normand (at page 861) put it as follows:
“It is therefore not enough for the plaintiff to say that the occupiers of the
cricket ground could have foreseen the possibility that a ball might be hit out
of the ground by a batsman and might injure people on the road; she must
go further and say that they ought, as reasonable men, to have foreseen the
probability of such an occurrence.”
(emphasis added)
14
As to which see The Wagon Mound (No 1) [1961] A.C.388 and Smith v Leech Brain & Co
[1992] 2 QB 405.
10
31.
Either within the concept of the “magnitude of risk” or as separate components, one
must also consider the likelihood of injury and the significance or gravity of that
injury should it occur.
32.
A convenient (and more recent) expression of those principles can be found in the
decision of the Court of Appeal in Whippey v Jones [2009] EWCA Civ 452. It is
convenient to recite paragraphs 16 and 17 verbatim as containing not simply an
expression of the test as it should be applied in such cases but the jurisprudential
origin of that test:
“16.
Did the judge there correctly state the legal test? The question of whether a
person has acted negligently is not answered simply by analysing what he
did or did not do in the circumstances that prevailed at the time in question
and then testing it against an objective standard of "reasonable behaviour".
Before holding that a person's standard of care has fallen below the
objective standard expected and so finding that he acted negligently, the
court must be satisfied that a reasonable person in the position of the
defendant (ie. the person who caused the incident) would contemplate that
injury is likely to follow from his acts or omissions. Nor is the remote
possibility of injury enough; there must be a sufficient probability of injury
to lead a reasonable person (in the position of the defendant) to anticipate it.
17.
This is clear from classic statements of the law on the standard of care that is
expected of people in circumstances where they owe a duty of care to others.
In Donoghue v Stevenson, Lord Atkin stated the standard of care that a
person must adopt is: "…[to] take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour". I would emphasise the word "likely". In Bolton v Stone (the
case of the cricket ball that was hit out of the ground and injured a passer
by), Lord Porter elaborated Lord Atkin's statement by saying: "…it is not
enough that the event should be such as can reasonably be foreseen; the
further result that injury is likely to follow must be also such as a reasonable
man would contemplate, before he can be convicted of actionable
negligence. Nor is the remote possibility of injury occurring enough; there
must be sufficient probability to lead a reasonable man to anticipate it". In
11
the same case, Lord Normand referred to statements of various of their
Lordships in Glasgow Corporation v Muir concerning the proper test to
define the standard of care that must be adopted by the reasonable man.
Lord Normand agreed with a statement of Lord Clauson in the Glasgow
Corporation case that the test is whether the person owing the duty of care
"had in contemplation that, unless some further precautions were taken,
such an unfortunate occurrence as that which in fact took place might well
be expected".”
33.
In Orchard v Lee [2009] EWCA Civ 295 15, exactly the same principle, as Waller LJ
put it at paragraph 7,
“to test negligence simply by reference to a realisation that actions may
cause injury makes far too broad a test”
and as Aikens LJ put it at paragraph 23
“The question of whether a person has acted negligently is not answered
simply by analysing what he did or did not do in the circumstances that
prevailed at the time in question and then testing it against an objective
standard of “reasonable behaviour”. Before holding that a person has
acted negligently so as to be liable in an action for negligence, the court
must be satisfied that a reasonable person in the position of the defendant (ie
the person who caused the incident) would contemplate that injury is likely
to follow from his acts or omissions. Nor is the remote possibility of injury
enough; there must be a sufficient probability of injury to lead a reasonable
person (in the position of the defendant) to anticipate it. See in particular
the speech of Lord Porter in Bolton v Stone [1951] AC 850 at 858.”
34.
As this Court will readily appreciate, the Bolam test as the claimant in Anderson
argued it should be applied, does no more than to provide an answer to the question
posed in the first sentence of paragraph 23 of Aikens LJ’s judgment. It does nothing
15
A case in which a 13 year old boy collided with and injured a school supervisor in the course
of “horseplay”.
12
to inform the judgment on negligence that is analysed in the rest of the passage which
we have quoted.
35.
Another relevant and recent authority is the bouncy castle case of Perry v Harris
[2008] EWCA Civ 907 to which we have already referred. And it would be wrong
to suggest that the decision of the Court of Appeal in that case was really confined to
its particular facts.
36.
On the contrary, the point of principle addressed at paragraph 38 of the Judgment of
the Court in Perry is one of general application. Its formulation of the right test
derives precisely from Lord Atkin’s expression of the standard of care in Donoghue
v Stevenson 1932 AC 362 where Lord Atkin stated (at page 580) that the standard of
care to be adopted is “...reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour” (emphasis added).
Another familiar authority on the same point is Glasgow Corporation v Muir [1943]
AC 448.
37.
As the Court of Appeal explained in Perry, the likelihood of any injury is not itself
enough: the severity of such an injury is also an important consideration. So the
criticism of Foskett J’s approach is that he did not adequately formulate the test at
paragraphs 118, 125-133 of his judgment. Nor has he properly answered the question
posed of what was the added risk created by taking the claimant down this slope.
Instead, he converted the reasonable foresight of a fall (such as could happen skiing
anywhere) and the (far more remote) possibility of some kind of collision (which,
equally, could happen anywhere) into foresight (at paragraphs 132-133) of “serious
injury” just because all or any kind of injury is literally (rather than reasonably)
foreseeable.
38.
That same potential for injury will have existed anywhere where people ski and
where the group had ski-ed. What the claimant needed to establish was that the
“error of judgment” was negligent because it was likely (according to the test set out
above) to result in serious injury or at the very least it created a significant added risk
of such injury.
13
The Claimant took an informed decision: duty and standard of care and causation
39.
That the claimant took his own informed decision may be relevant in two ways, both
of which would have been argued on appeal.
40.
First, if the claimant truly chose to go down the slope even in the awareness that it
was beyond his capabilities, thus recognising and taking the added (and obvious) risk
of a fall and was able to see things with which he might collide if he did lose control,
then it is at least arguable that he put himself beyond the extent of the instructor’s
duty of care.
41.
It would not so much be a case of volenti non fit iniuria: rather, it may be more
appropriate to say that the claimant’s own choice meant that the general duty of care
owed by the instructor did not extent to protect him from the consequences of his
own choice.
42.
Second, and alternatively, one might simply argue that, by making that choice, the
chain of causation between the instructor’s error in taking a pupil to a slope that was
beyond him was broken when the pupil exercised his own free choice to continue
43.
It is the former approach which seems more popular in recent Court of Appeal
authority. In Poppleton v The Trustees of the Portsmouth Youth Activity Centre
[2008] EWCA Civ 646 the absence of an assumption of responsibility was key to the
Court’s rejection of the idea that any duty of care existed. In Evans v Kosmar [2007]
EWCA Civ 1003, on the other hand, the duty of care that admittedly existed did not
extend to protecting the claimant from obvious risks that he freely undertook.
44.
This is entirely consistent with the emphasis on personal responsibility and free will
in cases such as Tomlinson v Congleton BC [2004] 1 AC 46. As Richards LJ put it at
paragraph 39 of his Judgment in Evans,
“... The core of the reasoning in Tomlinson as in earlier cases such as Ratcliff
v McConnell, was that people should accept responsibility for the risks they
choose to run and that there should be no duty to protect them against
14
obvious risks (subject to Lord Hoffmann’s qualification as to cases where
there is no genuine or informed choice or there is some lack of capacity)”.
45.
That emphasis on awareness of risk in the context of deciding the standard of care is
to be found in other cases in the sporting context.
46.
In Caldwell v Maguire [2001] EWCA Civ 1054, for example, the fact that the
respondents were found guilty of careless riding16 was not the same thing as common
law negligence. The Court (at paragraph 14 and following) analysed the previous
cases and considered 17 whether the plaintiff’s voluntary acceptance of risk had any
bearing on the question of duty or the standard of care.
47.
The answer must be that the voluntary acceptance of risk bears both on whether or
not there is a duty and on the standard of care if there is one. This is, we submit, is
also clear from the quotation from Wooldridge v Sumner [1963] 2 QB 43 cited at
paragraph 17 of Caldwell.
48.
Although the Anderson case was not concerned with arguments about a momentary
lapse of judgment (as was the case in Caldwell), it is relevant in deciding the standard
or extent of the duty of care to recognise that the claimant as an adult was consenting
to undertake an activity with the same awareness of risk as the person who is
providing instruction.
49.
But it is suggested that the fact that someone chooses to do something in the
awareness of any additional risk is also relevant to causation as a free-standing issue
of causation.
Donoghue
18
Mr Anderson, like Mr Poppleton, Mr Evans or Mr Tomlinson or Mr
freely chose to do something with full awareness of the dangers
involved.
50.
Of course, those cases are factually different: unlike Mr Anderson, each of those
injured men chose to do something that was obviously stupid. Moreover, in
Anderson, there was also a recognised relationship of instructor and pupil. But the
16
17
18
Which one might, for our purposes, equate with a finding of misjudgment on a narrow
application of the Bolam test.
As had Kitto J in the Australian case of Rootes v Shelton [1968] ALR 33.
In Donoghue v Folkestone Properties [2003] EWCA Civ 231.
15
fact is that this claimant was still free to decide for himself what he did or did not do.
It was his choice, in the end, which meant he went down this slope. When decided to
take that added risk of falling, if added risk it was, and if the instructor was at fault in
bringing him to that point, that fault did no more than create an opportunity for the
accident 19.
Conclusion
51.
The Anderson case may perhaps be a salutary lesson of the danger of reducing one’s
legal analysis to a seductively simple, single question/answer test – Bolam, in the
case in point. But we all know how easy it is to look with hindsight after the event
and see how it might have been argued differently20.
52.
However, the real value of the case from a jurisprudential point of view is more
significant The case shows how decisions on questions of the duty and standard of
care in a sporting context require a more detailed analysis going beyond
considerations of simple fault (is the instructor open to criticism or not?). Rather,
they require close analysis of the extent of any duty of care and of foreseeability as a
test not simply of remoteness of damage or the existence of a duty of care but also in
relation to the decision on standard of care
August 2010
19
20
As in Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370: as the editors of Charlesworth &
Percy on Negligence (11th Edition) at paragraph 5-36 observed, although as a principle of law
the rule of last opportunity ... is now defunct, it may sometimes be a useful test to apply in
deciding, as a matter of fact, whether an accident was caused by the fault of one or both of the
parties.
The present author feels this on a very regular basis.