Care must be taken in respect of a risk that is reasonably foreseeable. Nearly all human actions involve some risk of damage, but not every risky act will result in liability.
Bolton v Stone [1951] 1 All ER 1078
The plaintiff was injured on the highway by a cricket ball hit from the defendants’ ground. The ball had been hit 100 yards and cleared a 17-foot fence which was 78 yards from the batsman. The evidence showed that the ball had only been hit out of the ground six times in the previous 30 years. The defendants were found not to have been negligent, as the risk was so small that the reasonable man would have been justified in disregarding it. This case was also argued in nuisance, but counsel conceded that if he could not succeed in negligence, he could not succeed in nuisance. The key question here was the degree of probability rather than the costs of prevention but in a later case (Shine v London Borough of Tower Hamlets [2006] All ER (D) 79 ( Jun)) it was interpreted as authority for the proposition that there has to be a balance between the likely severity of the accident and the cost of putting it right.
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1434
The plaintiff’s husband was riding his motor cycle along a road beside a piece of open land occupied by the defendants. Children were permitted to play football on the land. A ball was kicked on to the road causing a fatal accident. As there was a strong possibility of injury to road users, the defendants were negligent, as they had taken no additional precautions to ensure the safety of road users. It should be remembered that the test is reasonable care in all the circumstances of the case. The claimant may have characteristics which render the likelihood of harm greater and therefore increase the risk.
Haley v London Electricity Board [1965] AC 778
The defendants left a hammer on the pavement to warn people of excavations. The plaintiff, who was blind, tripped over the hammer and was injured. It was held that although the warning was adequate for sighted persons, it was inadequate for a blind person. The number of blind people was sufficiently large to make them a class which the defendants ought reasonably to have had in contemplation. The cost of prevention in this case was low. Lord Morton: [The Board’s] duty is to take reasonable care not to act in a way likely to endanger other persons who may reasonably be expected to walk along the pavement. That duty is owed to blind persons if the operators foresee or ought to have foreseen that blind persons may walk along the pavement and is in no way different from the duty owed to persons with sight, though the carrying out of the duty may involve extra precautions in the case of blind pedestrians. I think that everyone living in Greater London must have seen blind persons walking slowly along the pavement and waving a white stick in front of them so as to touch any distraction which may be in their way and I think that the respondent’s workmen ought to have foreseen that a blind person might well come along the pavement in question.
The courts also take the view that dealings with children demand a high degree of care. In Yachuk v Oliver Blais [1949] AC 386 the defendants sold petrol to a nine-year-old. The plaintiff was burned when the child set fire to the petrol. The defendants were held liable for selling the petrol, although the child had said he needed it for his mother’s car.
The magnitude of harm likely
The court will take into account not only the risk of any damage to the claimant but also the extent of the damage that is risked. Paris v Stepney Borough Council [1951] AC 367 The plaintiff, who had one eye, was employed as a mechanic in the defendants’ garage. Part of his job involved welding. It was not normal to supply goggles to men involved in such work. A piece of metal flew into the plaintiff’s eye with the result that he became completely blind. The defendants were held liable, although they would not have been liable to a person with normal sight. The greater risk to the plaintiff meant that greater precautions than normal had to be taken. Withers v Perry Chain Co Ltd [1961] 1 WLR 1314 The plaintiff was prone to dermatitis and was given the most grease-free job available. Despite this, she contracted dermatitis. The defendant employers were held not liable as they had done all that was reasonable, short of refusing to employ her at all.
The utility of the object to be achieved
The court may be called on to assess the social utility of the defendant’s conduct in determining whether he was negligent. Asquith J stated in Daborn v Bath Tramways [1946] 2 All ER 333: If all the trains in this country were restricted to a speed of five miles per hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.
Watt v Hertfordshire County Council [1954] 1 WLR 835
The plaintiff fireman was on duty when an emergency call was received. A woman had been trapped under a car and lifting equipment was required. A heavy jack was loaded on to a lorry which was not equipped to secure it. On the way to the accident the jack moved and injured the plaintiff, who sued his employers. The action failed as, in the circumstances, the risk involved was not so great as to prohibit an attempt to save life.
The value of saving life is surely unarguable, but was it fair on the fireman that he should recover nothing for injuries received in the course of his employment? The Court of Appeal has expressed disquiet that members of the rescue services may go uncompensated for injuries received at work. (King v Sussex Ambulance NHS Trust [2002] ICR 1413.) However, as utility is a factor going to negligence, it is difficult to see how such people could be compensated by the tort system unless a form of strict liability was introduced. Other values may not be so easy to assess. What, for example, is the value of playing cricket? Was this a factor which influenced the decision in Bolton v Stone? It would clearly have made a difference if the plaintiff’s injury had been caused by an unlawful activity. The following case is taken from the area of occupier’s liability of defective premises and as such was decided under the relevant statutes, the Occupier’s Liability Act 1957 and the Occupier’s Liability Act 1984. It does, however, illustrate the issues involved in a breach of duty in a particular area which has generated a considerable amount of litigation, that of an occupier of land for persons injured during leisure pursuits on the land.
Tomlinson v Congleton District Council [2003] 3 All ER 1122
The defendants owned, occupied and managed a public park. In the park was a lake formed from a disused sand extraction pit. The lake had sandy beaches and was a popular recreational venue where yachting, sub-aqua diving and other regulated activities were permitted, but swimming was not. Notices reading ‘Dangerous water: no swimming’ were posted but they had little or no effect. The unauthorised use of the lake and the increasing possibility of an accident was of concern to the defendants. A plan to landscape the shores and plant over the beaches from which people swam had been approved, but work had begun only shortly before 6 May 1995. On that date the claimant went to the lake. He ran into the water and dived, striking his head on the sandy bottom with sufficient force to cause him an injury which resulted in paralysis from the neck downward. He brought proceedings for damages claiming that the defendants, as occupiers, owed him the common duty of care set out in s 2(2) of the Occupiers’ Liability Act 1957, which was a duty to take such care as in all the circumstances was reasonable to see that a visitor would be reasonably safe in using the premises for the purposes for which he was permitted to be there. At trial it was conceded that he had seen and ignored the warning signs, so that when he entered the water he had ceased to be at the park for purposes for which he had been invited and permitted by the defendants to be there, and had accordingly ceased to be a visitor and had become a trespasser. As such he was owed a lesser duty of care under the Occupiers’ Liability Act 1984.
Lord Hoffmann:
My Lords, it will in the circumstances be convenient to consider first the question of what the position would have been if Mr Tomlinson had been a lawful visitor owed a duty under s 2(2) of the 1957 Act. Assume, therefore, that there had been no prohibition on swimming. What was the risk of serious injury? To some extent this depends upon what one regards as the relevant risk. As I have mentioned, the judge thought it was the risk of injury through diving while the Court of Appeal thought it was any kind of injury which could happen to people in the water. Although, as I have said, I am inclined to agree with the judge, I do not want to put the basis of my decision too narrowly. So I accept that we are concerned with the steps, if any, which should have been taken to prevent any kind of water accident. According to the Royal Society for the Prevention of Accidents, about 450 people drown while swimming in the United Kingdom every year (see Darby v National Trust [2001] PIQR P372 at 374). About 25–35 break their necks diving and no doubt others sustain less serious injuries. So there is obviously some degree of risk in swimming and diving, as there is in climbing, cycling, fell walking and many other such activities. I turn then to the cost of taking preventative measures. Ward LJ described it [£5,000] as ‘not excessive’. Perhaps it was not, although the outlay has to be seen in the context of the other items (rated ‘essential’ and ‘highly desirable’) in the borough council budget which had taken precedence over the destruction of the beaches for the previous two years. I do not, however, regard the financial cost as a significant item in the balancing exercise which the court has to undertake. There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk. The Court of Appeal made no reference at all to the social value of the activities which were to be prohibited. The majority of people who went to the beaches to sunbathe, paddle and play with their children were enjoying themselves in a way which gave them pleasure and caused no risk to themselves or anyone else. This must be something to be taken into account in deciding whether it was reasonable to expect the council to destroy the beaches. I have the impression that the Court of Appeal felt able to brush these matters aside because the council had already decided to do the work. But they were held liable for having failed to do so before Mr Tomlinson’s accident and the question is therefore whether they were under a legal duty to do so. Ward LJ placed much emphasis upon the fact that the council had decided to destroy the beaches and that its officers thought that this was necessary to avoid being held liable for an accident to a swimmer. But the fact that the council’s safety officers thought that the work was necessary does not show that there was a legal duty to do it. . . . THE BALANCE OF RISK, GRAVITY OF INJURY, COST AND SOCIAL VALUE My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an oversimplification. Even in the case of the duty owed to a lawful visitor under s 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to ‘such care as in all the circumstances of the case is reasonable’ depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other. . . . in Jolley v Sutton London BC [2000] 3 All ER 409, [2000] 1 WLR 1082 there was no social value or cost saving to the council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No 2) [1966] 2 All ER 709 at 718, [1967] 1 AC 617 at 642 Lord Reid drew a contrast with Bolton v Stone [1951] 1 All ER 1078, [1951] AC 850 in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground. This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which Parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v Stone, it is still in all the circumstances reasonable to do nothing about it.
This is the area that the government was concerned with when it introduced the Compensation Act 2006. However, it would appear from this decision and the comments of Lord Hoffmann that the statutory intervention will add nothing to the existing common law. The case is a warning that it will not always be the ‘best insurer’ who succeeds. The case illustrates that claimants retain personal responsibility for their own safety despite the defendant in this case having a deeper pocket.
The practicability of prevention
Once the court has identified a risk as reasonably foreseeable, the question is whether the defendants should have taken precautions against that risk. If the cost of eliminating the risk is out of proportion to the extent of the risk, then the defendant will not be obliged to take preventative measures. (See Bolton v Stone.)
Latimer v AEC Ltd [1953] AC 643
After a factory was flooded, the owner did all that he could to eliminate the effects of the flooding by using sawdust on the floors. Some areas of floor remained uncovered. The plaintiff fell on one of these areas and was injured. He sued his employer in negligence, alleging that the factory ought to have been closed. It was held that it was not necessary to take such a precaution as it was out of proportion to the risk involved.
It is not normally necessary to eliminate the risk altogether, as this would amount to insurance against the risk.
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