Understanding Tort Law
2
1. The standard of care 2. The duty of care 3. Remoteness / legal causation 4. Factual causation 5. Defences 3
1. Subjective standard • D’s liability determined in accordance with her particular abilities, disabilities, etc. 2. Strict liability D’s liability determined by the impact of the D’s action on the P. If the P is injured, then • the D is liable regardless of the D’s fault. 3. Objective standard D’s liability determined by reference to an ordinary reasonable person. • 4
‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do: or doing something which a prudent and reasonable man would not do.’ 5
(1837) 3 Hodges 51; 132 ER 490 6
‘Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.’ 7
1. Negligence is not carelessness. 2. Negligence is not a state of mind. 3. Legal fault is not ethical fault. 4. A finding of negligence does not imply that the D is a bad person or even that the D should have done better in the particular case. 8
Was the D 1. able to understand the duty that rested upon him and 2. able to discharge that duty? 9
[1980] 1 WLR 823 10
1. D suffered stroke 2. No warning 3. Impaired D’s consciousness 4. The D remained in that state during his driving 5. D knew that he was feeling odd and that he had hit the van 6. D did have some awareness of his surroundings and tried to prevent harm 7. D not aware that he was unfit to drive 11
1. Negligence is not carelessness. 2. Negligence is not a state of mind. 3. Legal fault is not ethical fault. 4. A finding of negligence does not imply that the D is a bad person or even that the D should have done better in the particular case. 12
[1998] 1 WLR 1263 (CA) 13
‘A person with Mr Tarleton’s very rare condition commonly does not appreciate that his ability is impaired, and he was no exception. Although by the time of trial Mr Tarleton was dead, and there was no direct evidence of his actual state of awareness, the judge held that he “would not have continued to drive if he had appreciated and was conscious that his ability was impaired.” Of course, if he had known that it was, he would have been negligent in continuing to drive despite his knowledge of his disability. So also if he ought to have known that he was subject to a condition that rendered him unfit to drive … . ‘In my judgment, the standard of care that Mr Tarleton was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of Mr Tarleton’s condition would be to impose strict liability. But that is not the law. …’ 14
(1966) 115 CLR 199 15
1. Infants who are incapable of the perception of risk Incapable of liability 2. Children whose perception of risk is equal to an adult’s Same liability as adults 3. Children whose perception of risk is in between Standard of care to be expected is ‘that which it is reasonable to expect of children of like age, intelligence and experience’ 16
What can be expected of an ordinary boy of 12? Does this mean 1. What do ordinary boys of 12 do in such circumstances? 2. What do ordinary boys of 12 believe/ think/ know that they should do in such circumstances? 17
(1987) 61 OR (2d) 396 (Ont CA) 18
‘There has been a movement toward holding children to the reasonable person standard when they engage in adult activities. A more lenient standard for young people in the operation of motor vehicles, for example, was thought to be “unrealistic” and “inimical to public safety”. When a society permits young people of 15 or 16 the privilege of operating a lethal weapon like an automobile on its highways, it should require of them the same caution it demands of all other drivers.’ 19
‘Special rules for children make sense, especially when they are plaintiffs; however, when a young person is engaged in an adult activity which is normally insured, the policy of protecting the child from ruinous liability loses its force. When the rights of adulthood are granted, the responsibilities of maturity should also accompany them. The legitimate expectations of the community are different when a youth is operating a motor vehicle than when he is playing ball. As one American court suggested, juvenile conduct may be expected from children at play, but “one cannot know whether the operator of an approaching automobile … is a minor or adult, and usually cannot protect himself against youthful imprudence even if warned”.’ 20
When the child has a perception of the risk less than that of an adult: 1. the standard to be applied is ‘that which it is reasonable to expect of children of like age, intelligence and experience’, 2. unless the child is engaged in an adult activity, in which case the ordinary adult standard applies. 21
1. Why is the standard of care lowered for children? 2. Why is it not lowered when the child is engaged in an adult activity? 3. What is an adult activity? 22
[1957] 1 WLR 582 23
[1951] AC 367 (HL) 24
1. Why is the standard of care lowered for children? 2. Why is it not lowered when the child is engaged in an adult activity? 3. What is an adult activity? 4. Why is the standard raised for experts? 5. Why is the standard raised when the P has a vulnerability? 6. Can we answer all these questions consistently? 25
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