STANDARD OF CARE

CONTENT

1.0       Introduction

2.0       Objectives

• Main Content
• The Reasonable Man
• Moral Qualities and Knowledge
• Skills
• Need for Expert
• Age and Lunacy
• Physical, Intellectual, and Emotional Characteristics

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Readings

INTRODUCTION

Negligence is conduct falling below the standard established for the protection of others against unreasonable risk or harm. This standard of conduct is ordinarily prudence would do in the circumstances.

The general standard of conduct required by Law is a necessary complement of the legal concept of ‘duty’. There is not only the question ‘did the defendant owe a duty to be careful? But also what precisely was required of him to discharge it, it is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant conduct.

Thus, if at issue is the supervision of school children during midday break, a court would ordinarily be content with the fact that the duty of the school is that of a reasonably careful parent.

OBJECTIVES

At the end of this unit, you should be able to:

• define the term Reasonable Man;
• discuss Moral Qualities and Knowledge;
• state what Skills
• explain Need for Expert
• discuss Age and Lunacy
• list and discuss Physical, Intellectual, and Emotional Characteristic.

MAIN CONTENT

The Reasonable Man

The reasonable man of ordinary prudence is the central figure in the formula traditionally employed in passing the negligence issue for adjudication. In order to objectify the Laws abstractions, like ‘care, reasonableness or foreseability, the man of ordinary prudence was invented as a model of the standard to which all men are required to confirm. He is the embodiment of all the qualities which we demand of the good citizen; and if not exactly a model of perfection. On the whole, the law has chosen external objective standards of conduct. When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary for the general welfare. If the standard were relaxed for defendants, who cannot obtain the normal, the burden of accidents losses resulting from the extra hazard created by society dangerous group of accident-prone individual would be thrown on the innocent victims of sub-standard behavior.

Although the legal “standard of foresight of the reasonable man eliminate the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Negligence consists in failure to do what the reasonable man would have done under the same or similar circumstances and the latitude of that expression in effect makes some allowance not only for external facts, but also for man of the personal characteristics of the actor himself.

Moral Qualities and Knowledge

A man is expected to have that degree of common sense or knowledge of everyday things which normal adult would posses. For instance, a reasonable person knows that petrol is highly inflammable, that solid objects sink in water and that gas is poisonous when inhaled. Furthermore, where the defendant holds a particular position, he will be  expected to show the degree of knowledge normally expected of a person in that position. Thus, for example, in the Wagon Mound (No.2) (1967) 1 AC 617, the privy council took the view that shipowners were liable for a fine caused by discharging oil from the ship into Sydney Harbour, because their chief enquire ought to have known that there was a real risk of oil catching fire. Again, it is clear that an employer is required to know more about the dangers of unfenced machinery than his workman.

With regards to facts and circumstances surrounding him, the defendant is expected to have observed that a reasonable man would notice. The occupier of premises, for example, will be negligent of the fails to notice that the stair are in dangerous state of disrepair, or that a septic tank in the garden has become dangerously exposed, so that lawful visitors to his property are put at risk. Moreover, a reasonable occupier is expected to employ experts to check those installations which he cannot through his lack of technical knowledge, check himself such as electrical wiring, or a lift.

Skills

A person who holds himself out as having a certain skill either in relation to the public generally (e.g. a care driver) or in relation to a person for whom he is performing a service (e.g. a doctor) will be expected to show the average amount of competence normally possessed by person doing that kind of work and he will be liable in negligence if he falls short of such standard. Thus, for example s surgeon performing an operation is expected to display the amount of care and skill usually expected of a normal competent member of his profession. See Whiteford V Hunter (1950) W N 553.

Intelligence

In determining whether the defendant in his action came up to the standard of a reasonable man, the court will measure those actions against the conduct expected of a person of normal intelligence and the defendant will not be excused for having noted “to the best of his own judgment” if his “best” is below that to be expected of a man of ordinary intelligence.

Age and Lunacy

In the case of children, the Law has made considerable concession to the subjective standard most of the decision have been with contributing negligence where there is greater temptation to take an indulgent view and give added with to exculpatory considerations, but there is no doubt that a child whether as plaintiff or defendant, is only expected to confirm to the standard appropriate for normal children of similar age and experience. This governs alike the child capacity to perceive the risk as well as his sense of judgment and behaviour. Thus it was held not negligent for a boy of 8 years to be striking matches in a barn and for a 5 years old to be shooting with an arrows.

Moreover, a minor who engages in dangerous adult activities such as driving a car or handling industrial equipment, must confirm to the standard of the reasonable prudent adult.

Corresponding allowance has always being made in Law to the aged whose Mental and Physical faculties have become impaired. The position of lunaties remains controversial. Some courts hae been prepared to excuse defendants whose lunacy was so extreme as to preclude them from appreciating their duty to take care on the ground that negligence presupposes an ability for rational choice. But the weight of authority support  the contrary view that it would be unfairly prejudicial to accident victims if any allowance were made for a defendant mental abnormality.

Continuation of Tort of Negligence

Rules of Professional Conduct for Medical and Dental Practitioners Revised Edition 1995 that “In an agency for instance, at a scene of a car accident the doctor passing by is under no inherent duty to stop and render first aid to the victims; but if he decides to stop and render care he is bound by the ethics to exercise a degree of reasonable care. That is to do everything that a competent doctor would do in the circumstances”.

It is worthy of note that the neighbour test was originally narrowed to care where physical damage was caused to the by the negligence but of society changes so rapidly, this area of law is never static. Lord Macmillan in Donoghue vs. Stevenson stated that the categories of negligence are never close because courts are ready to examine new situations and determine whether they call for a new duty of care.

Examples of duty of care;

1. It is the duty of all road users, at all times to keep a look out so as to avoid colliding with other road users. It has been stated in Ngilasi V. Motorcap Ltd 2000 12CNJ 105 that it is the duty of those driving when it is dark at such a speed and in a way that they are able to stop within the range of visibility.
2. In Okonkwo V.medical and Dental Practitioners’ Disciplinary Committee (1999) 9 NWLR Pt 617 pg 5, it was that as the relation ship of patients and doctors is always a special one, the patient having put his health and life in the doctor’s hand, the use of reasonable care is required of the doctor and as the reasonable care can be presumed by Law.
3. In Owena Bank V. Emok (2001) 41 WRN Pg 119 at 130 Sanusi JCA stated that “a banker is vicariously liable to its customers where he fails or neglects to adhere strictly to its customers instruction or where it fails to observe banking rules and regulations and such non compliance to customer’s instruction or banking rules and regulations led to the customer incurring any loss, damage or injuries”. A legal practitioner shall not be immured from liability for damage attributed to his negligence when acting in his capacity, any person purporting to limit or exclude his liability in any contract shall be void. See S.9 of the LOA 1975 now LFN 1990. In Hedly Bryne and Co. Ltd V Heller and Partners Ltd 1964 AC 465, the House of Lord’s allowed in principle a duty of care not to make statements that would cause economic loss to persons who reasonably relied on them. The court rejected the neighbour principle arguing that it gives rise to potentially too wide a liability and stated that there had to be some factors apart from reasonable foreseability that would be taken into consideration to determine duty of care. Thus in Hanns V Metchon Lord on Bourough 1978 AC 728 it was stated that a duty of care and to whom it is given has to be approached in 2 stages:

• one has to ask whether in between the wrong doer and the person who has suffered damage, there is relationship of proximity or neighbourhood or reasonable foresee ability such that in the reasonable contemplation of the former, carelessness on the part of may likely cause damage to the latter in which case a prima facie duty of care.
• if the foregoing question is answered (reason able foresee ability) affirmatively, it is expedient to consider whether there are other factors or considerations which ought to negate or to reduce or limit the scope of the duty.

These tests were adopted in the Nigerian case of Tecno Mech Nig.Ltd V. Ogunbayo 2000 14NWLR Pt639 Pg 153. The considerations which may reduce or negate the scope of the duty are:

Whether it is just and reasonable to impose a duty on public policy. In Mclulghlin V. O’brien 1983, it was stated that “at the margin, the boundaries of a man’s responsibilities for acts of negligence have to be fixed as a matter of policy”. In Aston

1. Turner 1980 3 ALL ER 870, two mooned in on an act of burglary while they were fleeing from the scene of the incident in the getaway car, one of them was seriously injured by the careless driving of his friend. E. W. Bang .J based his decision on public policy and concluded that the defendant will not be held liable. In Rondell V. Wosley 1969 AC 191, it was held that a barrister when acting in the course of judicial proceedings enjoins complete immunity from action of negligence, in respect of any act done or spoken in the course of these proceedings. See section 9(2) of the LPA. Similarly, liability for negligence by legal practitioner under 59(1) of LPA does not extend to where the services were rendered without reward either by way of fees imbursement or otherwise.

It seems, however, that the liability of medical practitioners in negligence, without prejudice to the defences is very strict and absolute. Lord Denning has stated that, “if a man goes to the doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill in his treatment and this is so whether the doctor has been paid for his services or not”. See Lord Denning principles of Law pg233. Thus in Cassidi V. Minister of Health (1951) 2QB243. Cassidi sued the minister of health for negligence of doctors who performed an operation on him. Before the operation, Cassidy had two stiff fingers but after the operation he had four stiff fingers. It was held that the hospital authority was vicariously liable for negligence of its servants and there was liability whether the doctors did the act for reward or not.

Breach of a Duty

Having established that a duty of care is by the defendant to the plaintiff in particular circumstances; the next ingredient to determine is to discover whether the defendant is in breach of that duty. The standard of care expected of a particular defendant is usually set by law and it is a standard of the reasonable man i.e. an objective test. In “street on Torts”, it is illustrated that, “if A owes B a duty of care, A must attain a standard of a reasonable person i.e. reasonable man”. However, in driving at reasonable standard of a defendant, the court must be guided by the following factors;

• Magnitude of the Risk. This deals with the likelihood that the injury would occur and the serious of the injury that is risked. The greater of risk to the plaintiff, means greater precautions than normal that must be taken by the defendant. In PARIS V. STEPHY BOUROUGH Council 1951 AC 367, the plaintiff who had one eye was employed as a mechanic in the defendant’s garage. Part of his job includes welding. It was not normal to put on goggle in such a job. In the cause of his work a piece of metal flew into the plaintiff’s eyes, as a result he becomes completely blind. He then sued the defendant. The defendant was held liable. Although he would not have been liable to a person with normal sight.
• The Skill the Defendant Posses or Holds Himself out as such. Where a person posses special skill or pose himself as possessing or holding such skills it shall be his duty to exercise such care as a normal skillful member of his trade or profession, he is reasonably expected to exercise. Where such a skillful person is alleged to have committed negligence, in so exercising such care, his performance shall be judged in the normal standard, reasonably expected of an ordinary person with requisite skill in a similar profession or bisiness. The maxim is imperatia culpas ad numeratiu. See section 24 of the tort law of Anambra state, rule 10 for the rules of medical professional conduct for the Medical and Dental Practitioners revised edition 1995, see also UBA Ltd V Nkene Dilichukwu 1999 12 NWLR pt 629pg 132.
• T he Cost or Practicability of Avoiding the Harm. The risk must be balanced against the measures necessary to eliminate it and the practical measures which the defendant would have taken to avoid the harm woul be taken into consideration. In Latimar v. a.e.c. 1952 2QB pg 700 and 711, a factory floor became slippery as a result of flood. The occupants of the factory did everything possible to get rid of effects of the floor. Nevertheless, the plaintiff was injured and then sought to establish that the occupiers would have closed down the factory. The House of Lords per Lord Denning held that the risk of injury created by the slippery floor was not so great as to justify the closure of the factory. The defendants were thus not held liable.

CONCLUSION

The standard of care is that of the ordinary man of average intelligence in the position of the defendant or the actor. Extraordinary intelligence or foresight is not expected except where the defendant holds himself out to have such. A defendant is expected to be able to perceive the need of the “Neighbour” in carrying out his act. Paris v Stepney B. C. T., National Coal Board V J. E. Evans & Co. (1957). The greater the risk, the higher the standard of care which is expected of the defendant.

If no duty was owed, then there would be no breach. Duty of Care would not be owned if the plaintiff is not a “neighbor’ that is somebody within reasonable contemplation.

SUMMARY

In this unit, you have learnt

1. The standard of Care
2. Skills of a reasonable person
3. Intelligence of a reasonable
4. The standard of conduct of a reasonable

TUTOR MARKED ASSIGNMENT

1. Critically examine the standard of a care required of the defendant in a case of Negligence.
2. Explain the Neighborhood principle enacted in Donoghue v Stephenson
3. The standard of a reasonable man is based on subjective criteria.

REFERENCES/FURTHER READINGS

1. Bodunde Bankole: Torts: Law of Wrongful Conducts (1998) Libriservice Press, Lagos
2. Kodo;uye: Nigeria Law of Torts (1999) Spectrum Publishers, Ibadan
3. John G. Fleming: The Law of Torts (1997) The Law Book co. Ltd.
4. Nikie Tobi: Souces of Nigeria Law (1996) Mij