The Standard of Care

General Standard of Care 

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 

 

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 

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 





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 

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 



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? 



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 

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” 

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 

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 

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 

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 

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., 

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 

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? 

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 

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 

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. 

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 

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 

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